Tom Burrell

Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at
August 2019
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  • While the Anti-Federalists may have been alarmists with respect to congressional overreaching under the proposed constitution, there is little room for doubt that the Anti-Federalists nailed the Supreme Court problem directly on its head.  Regarding the judicial branch, Brutus commented in 1787 that it is easy to see that “these courts will eclipse the dignity, and take away from the respectability, of the state courts[,] . . . and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states.”

    Under the expansive central authority, argued Brutus, the national government will reduce the country to one single government as any power reserved to the states will appear to be a clog in the wheel of national government.  “[I]t is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.”

    Throughout American history, the concept of self-aggrandizement has been repeatedly applied to the unelected judiciary.  Following the enactment of the Fourteenth Amendment, the judiciary became the self-appointed depositary for the protection of life, liberty, and property—a concept rejected by the 39th Congress and by the Framers of the Constitution.  In a republican form of government, the people are always the depository and safeguard of liberty.  Over time, the tension between the Court and the rest of the nation has increased.  Brutus foresaw this problem as a consequence of having no check against the judiciary:

    [Those who are vested with the judicial power] 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.

    Brutus predicted that the national judiciary would completely subvert the state judiciaries and even the state legislatures.  Brutus argued that under the proposed constitutional system, the judiciary is empowered to explain the Constitution according to the reasoning and spirit without being confined to the words or letters.

    With such freedom, courts will rule against acts of the legislature without any constraint as nothing in the Constitution provides a check against the courts.  “This power in the judicial, will enable them to mould the government, into almost any shape they please.”  “[T]he judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers.”

    Brutus argued that with the Court’s liberal constructions of the Constitution, the states will become trifle and unimportant and perhaps not even worth having.

    The formation of the judicial powers in this new system will abolish the state governments and melt the states into one national government.

    Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial.  They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.  These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them.  In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion.  The people will be told, that their state officers, and state legislatures are a burden and expence without affording any solid advantage, for that all the laws passed by them, might be equally well made by the general legislature.

    Brutus argued that a proper republican form of government puts construction of the Constitution with the legislature so that if the legislature exceeds its power in constructing the Constitution, the people, from whom they derive their power, could correct their errors

    A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people [choose] at stated periods, should have the power in the last resort to determine the sense of the compact:  if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; 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 controul them but with a high hand and an outstretched arm.

    Letters, 1, 11, 14, and 15  1787-1788

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