There are few judicial principles more vital to the freedom and our republican form of government than this: Jus dicere, et non jus dare, that is “to declare the law, not to make it.” The people who founded America debated this concept. The Federalists wanted a strong national government with three branches: executive, legislative, and judicial. However, the Anti-Federalists were particularly wary of a powerful Supreme Court that might threaten our liberty and the balance of power with and between the other branches.
The most profound expression of this concern is found in Essay XI of the Anti-Federalist papers, by “Brutus”, the pseudonym chosen by its unknown author. In it, the writer expressed the concerns that many had in creating a powerful court on par with the legislative and the executive branches.
“It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.”
For Anti-Federalists, the introduction of a Supreme Court was a shock to the system that had preceded it. Under the Articles of Confederation, there were no federal courts. Courts were the province of the states. The proposal for a Supreme Court, and what the founders referred to in the Constitution as “inferior courts”, was designed to settle national matters as well as disputes between the states.
The debate was fierce. The Federalists argued the absence of a national court was a marked deficiency in the system of government that preceded the Constitution. Anti-Federalists disagreed. Their core gravamen was that an over-reaching Federal court system could herald the end of the republic. As “Brutus” notes, the court would be “authorized to determine all questions that may arise upon the meaning of the constitution in law” while empowered to “explain it according to the rules laid down for construing a law.”
This posed a significant problem for Anti-Federalists who thought such judicial latitude would allow courts to opine and make precedent in law about what the Constitution means by empowering the court “to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter” of the document.
The chief rebuttal to the concerns of the Anti-Federalists was offered by Alexander Hamilton, who supported a strong central government. Hamilton thought that the provision of a Supreme Court stood on solid ground and that the notion that it would lead to “judicial supremacy” was unfounded.
Indeed Hamilton was quite certain that judges would not substitute their personal “will” for their legal “judgments”. In Federalist 78, Hamilton defended the necessity and structure of a court, refuting the notion that it would be a threat to the other branches. Hamilton’s strongest defense of a Supreme Court was its primary function in “interpreting” the law, the very thing the Anti-Federalists feared it would abuse. Hamilton wrote:
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
Therefore, Hamilton, argued that the Constitution is the supreme law of the land and where the legislature errs in passing laws contrary to the Constitution, those laws are invalid. Indeed, Hamilton’s view in 1788 that the primary purpose of the court would be in deciding the “meaning” of law was sustained 15 years later in the landmark decision Marbury v. Madison when then Chief Justice of the Supreme Court, John Marshall, wrote “It is emphatically the province and duty of the judicial department to say what the law is.”
Hamilton then made the case that when a legislature passes an unconstitutional law, its action then stands in opposition to the people, whose “will” is supremely expressed in that Constitution. Therefore judges “ought to be governed” by the Constitution in deriving their judgments.
Just imagine if this was the debate we were to witness in confirming a new Supreme Court justice. Indeed, it would be supreme.