By 1787, a crisis seemed on the horizon.
The existing government of the Union was not working well.
The Articles of Confederation was an alliance between pre-existing states.
The Articles relied on one state, one vote, one branch of government, which meant it wasn't
really a government.
Both the advocates of the Constitution and their opponents were dissatisfied with the
Articles.
The difference between them was the opponents of the new Constitution thought the Articles
could cure themselves; they could pass a series of amendments that would empower the national
government.
And the Federalists concluded that what we had to do was start over.
"Instead of confining themselves to the powers with which they were entrusted, they pronounced
all amendments to the Articles of Confederation wholly impracticable; and with a spirit of
amity and concession truly remarkable, proceeded to form a government entirely new and totally
different in its principles and its organization."
Brutus VIII.
"The evils we experience do not proceed from minute or partial imperfections, but from
fundamental errors in the structure of the building, which cannot be amended otherwise
than by an alteration in the first principles and main pillars of the fabric."
Federalist XV.
The naming of Federalists was meant to be those people who wanted a closer union, a
more perfect union.
The Antifederalists were called Antifederalists by the Federalists because they were anti-federal
men.
They wanted a looser construction, although in terms of principle, they were more federal
in the old-fashioned sense of decentralized government and limited central government.
The Antifederalists opposed the Constitution because they thought it wouldn't guarantee
republican government.
It would degenerate into a form of aristocracy or despotism because there was too much power
in it.
Publius undertook a massive effort to persuade them otherwise, which helped to succeed in
winning the fights against the critics of the Constitution.
"After an unequivocal experience of the inefficacy of the subsisting federal government, you
are called upon to deliberate on a new Constitution for the United States of America.
The subject speaks its own importance."
Federalist I.
The most famous, and certainly the longest and most elaborate, defense of the new Constitution
was written by Alexander Hamilton and James Madison and John Jay under the pseudonym of
Publius.
There are no three Antifederalists who wrote under one name, Brutus.
Brutus wrote between October 1787 and April 1788, almost paralleling the writing of the
Federalists.
Brutus is the one who kills Julius Caesar, the authoritarian threat, and saves the Roman
Republic.
The Publius they had in mind was one of the co-founders of the Roman Republic and was,
in a way, an early savior of the Republic who democratized the early Roman Republic
but also stabilized it.
For Publius, the Articles of Confederation put the Revolution in danger.
For people like Brutus, who were more cautious, that the Revolution represented the real battle
and that we didn't need another battle, another huge structural change.
The main battle had been already fought and won.
"In unfolding the defects of the existing Confederation, the utility and necessity of
a federal judicature have been clearly pointed out."
Federalist LXXVIII.
Brutus had a very keen anticipation of problems lurking in the Supreme Court.
"It is to be observed that the Supreme Court has the power, in the last resort, to determine
all questions that may arise in the course of legal discussion on the meaning and construction
of the Constitution.
This power they will hold under the Constitution and independent of the legislature."
Brutus XII.
The key to democratic-republican government for Brutus is dependence on the people, and
responsibility to the people.
The judiciary becomes difficult for Brutus because it is not directly the result of the
consent of the people.
Publius's famous defense of judicial review rests upon the necessity, that if this to
be, as he says in Federalist 78, "a limited Constitution" you have to a way to enforce
the limits on what Congress, or the President, can do.
"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."
Federalist 78.
When the legislative branch violates the- the manifest tenor, the clear meaning, you
need- you need a judiciary; and it's some kind of independent body, not tied up with
the political mechanism, in order to restrain a legislative branch when it has gone off
the rails.
"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."
Brutus 11.
I think Brutus's point there is that there's no inherent mechanism within the Constitution
to restrain the Judiciary to the manifest tenor doctrine.
And Hamilton's response would be, "Congress will never let it happen."
There are many ways in which the elected branches of the government can exert authority over
the unelected one, simply in the- the power of appointment itself combined with the power
of removal through impeachment, means that the notion of a Court that's completely out
of control and indifferent to majority opinion seem to them very implausible.
"They have made the judges independent, in the fullest sense of the word.
They are independent of the people, of the legislature, and of every power under heaven.
Men placed in a situation will generally soon feel themselves independent of heaven itself."
Brutus 15.
They're supposed to enforce the highest law, the law of laws, namely, the Constitution.
It does presuppose a certain ethic among the judges, namely that they will respect their
role as judges.
They're not supposed to make law.
For Publius to say that Congress will never let it happen means that Congress would adhere
to the dignity of being a member of Congress.
For Publius's system to work, it requires that ambition counteract ambition.
"In framing a government which is to be administered by men over men, the great difficulty lies
in this: You must first enable the government to control the governed; and in the next place,
oblige it to control itself."
Federalist 51.
The very exercise of judicial power presupposes political judgments about what is right and
wrong and what proper structure of a government could be.
They're partisans of the Constitution, not partisans of any particular political party.
The only thing that got the Constitution over the hump in regard
the Judiciary, was the promise of a Bill of Rights.
There's something wrong.
That's Brutus' whole theme.
With each branch, there's something wrong.
So in the end, we need a Bill of Rights.
We don't need classical virtue.
We need a Bill of Rights to remind ourselves that, uh, we the people tell the government
what to do, not the government tell us what to do.
Unfortunately, one of the reasons that Brutus, in fact, has turned out to be, in many ways,
correct is because the Congress itself defers to the judiciary; that somehow we live under
the Constitution, but the Constitution is what the judiciary says it is.
Congress believes that.
Many presidents believe that and the judges certainly believe that.
And that was Brutus's prediction.
"The opinions of the Supreme Court, whatever they may be, will have the force of law; because
there is no power provided in the Constitution that can correct their errors, or control
their adjudications."
Brutus 11.
The Court is not so strong when it is being confronted by a popular branch of government
that has the people behind it, which I think confirms Publius's basic argument that in that
kind of confrontation, ultimately, the democratic branches win over the Court.
The problem in recent history has been that the democratic branches approve of the Court's
activism, more often than they don't.
And Brutus's prediction is one branch will become dominant.
You can't keep this equilibrium up.
It has a potentiality for one branch to take over the main role of the other two branches.
"But when this power is lodged in the hands of men, independent of the people and of their
representatives, and who are not constitutionally accountable for their opinions, no way is
left to control them but with a high hand and an outstretched arm."
Brutus 15.
It's the rejection of Publius's Constitution that has made Brutus's prediction seem true,
under contemporary circumstances.
I think what the Federalists attempted to do was to make the judiciary independent of
the regular political process of Congress and the President, without making the judiciary
independent of the people themselves, or the system itself.
That is, can you distinguish between politics and judging?
That's very, very difficult to do.
"From the courts of justice, the general liberty of the people can never be endangered from
that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature
and the Executive.
For I agree that 'there is no liberty, if the power of judging be not separated from
the legislative and executive powers.'"
Federalist 78.