Progressing the Constitution – The Ninth Amendment Part III

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Subtitle: Scotus – Robert Yates v. Alexander Hamilton.

What happened to the Scotus? In this squib, we’ll find the Framers blameless for today’s runaway federal courts.

Background. Under the British system colonial court judges were appointed by, and served at the pleasure of, the Crown. The ninth indictment of George III in our Declaration charged him with making “judges dependent on his Will alone, for the tenure of their Offices, and the amount and Payment of their Salaries.” George III’s judges deprived colonials “of the Benefits of Trial by Jury,” (18th indictment) and “transport(ed) (them) beyond Seas to be tried for pretended Offences,” (19th indictment). In a system in which the House of Lords was the supreme tribunal, colonial defendants logically feared political influence against them at their trials.

In March 1783 the Articles of Confederation corrected the first problem associated with the British system. What stood for a judiciary in Article IX wasn’t under the thumb of a chief executive. Neither did the Articles have jurisdiction over individuals. Like the House of Lords, Congress was “the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States.” While Article IX was perhaps adequate for a Confederation the purely federal approach to judging in the Articles was grossly inadequate under a government that acted on both the people and the states. It was an ad hoc institution that met when the situation required: whenever there was a dispute between the states.

But even our Framers were not immune to old habits and traditions. Despite George III’s judicial abuses, James Madison’s Virginia Plan of government provided a combined judicial/executive absolute veto of congressional bills. Fortunately, the Federal Convention reasoned their way out of Madison’s Council of Revision and left a qualified veto power with the President alone.

In their writings, two New Yorkers, Judge Robert Yates (1738-1801) and Alexander Hamilton (1755-1804) largely ignored this background. Why bother? The Revolution was still fresh in everyone’s minds. This related history is important today in understanding the problems the Framing generation confronted and corrected in their institutions for an American federal republic.

In the Anti-Federalist #15, March 20 1788, Yates wasn’t impressed with the Constitution’s Judiciary.1 He applauded the English system (as practiced in England, not the colonies), where “The judges . . . are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this Constitution will controul the legislature, for the Supreme Court are authorised in the last report to determine what is the extent of the powers of the Congress. Men placed in this situation will generally soon feel themselves independent of heaven itself.” By implication, Yates was willing to risk the political influence of Congress in American courts.

Fortunately, the Framers took the opposite position; they weren’t willing to risk a politicized judiciary. Their cure to the problem of politics in the courtroom was, in the business of legitimate judging, a judiciary independent of the legislature. To prevent a runaway Scotus their cure was Congressional checks when federal courts drifted outside the business of legitimate judging.

Scotus is the benign branch of the Framers’ Constitution. On June 14th 1788, Alexander Hamilton dismissed any danger from Scotus to liberty, describing it as having “neither force nor will,” . . . as long it remained distinct from both the legislative and the executive. But, he admitted “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2

As opposed to the British system the Framers elevated the American Scotus above politics. They separated making the law from judging the law. Hamilton in Federalist 81, “Since legislatures naturally divide according to party, there is reason to fear that the pestilential breath of faction may poison the foundation of justice.”

Whereas the people, state legislators, or special electors elevated fellow citizens to membership in the Constitution’s other branches, the Scotus was purposely isolated from the people. Their service for life subject to good behavior was one in which professional jurists could immerse themselves unbesmirched by politics, in the law. This is a little-heralded victory over arbitrary rule so typical in other nations. The business of judging is distinct from that of legislating.

So, with recent experiences in mind our Framers solved three problems. First, they solved the shortcomings of British tribunals. The American Scotus in operation was independent of the executive power. Second, they isolated Scotus from the political realm like those that vexed cases before the House of Lords. Third, and unlike the temporary board of states under the Articles of Confederation, the Scotus was permanent, robust and performed the judging duties itemized in Article III of the Constitution.

Independent, yes, but no branch in the Framers’ Constitution was isolated in its powers. There was separation of powers, but not absolute power within each branch. Each branch was subject to checks from at least one of the other branches. While all itemized legislative powers reside in Congress the President must typically sign Congressional bills before they go into effect. If a suit is filed against the law, Scotus may strike down statutes in violation of the Supreme Law of the Land: the Constitution.3

Regular readers know my disgust with the 17th Amendment. Thanks to the 17th, the Senate and along with it the entire Congress is petrified at the thought of exercising its Constitutional checks against runaway Article III courts. I count five related checks.

First, Congress determines the jurisdiction of every lower federal court. All jurisdiction (Article III section 1). Should Congress deny the jurisdiction of lower federal courts to hear cases regarding who, from what country, may enter the US, that’s it. End of discussion. The ACLU can pull out its hair in frustration and patriots can sit back and enjoy the spectacle.

Second, congress can trim the jurisdiction (Exceptions) of Scotus itself (Article III Section 2) that do not impact its Constitutional jurisdiction. For instance, in 1869 Congress relieved the Scotus of jurisdiction over military Reconstruction of the South! Years ago, Congress could have likewise told Scotus to butt out of the care and treatment of jihadi guests at Club Gitmo.

Third, via Congress’ regulation power in Article III Section 2: “. . . In all cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases … the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make. …. ” Congress could have nipped the social justice crusade for homosexual marriage back in the 1990s if it had excepted judicial oversight of the Defense of Marriage Act. The power to regulate Scotus also extends what to what constitutes a lawful decision. Congress could require a six vote super-majority of the Scotus to issue its rulings.

Fourth, impeachment. Article I sections 1 & 2. ‘Nuff said. It shouldn’t be a dead letter, but it is. A couple of judicial impeachment scalps per year would work wonders.

Five. This is perhaps the greatest check that Congress has over Scotus. Had it not withered away thanks to the 17th Amendment, it could have prevented the worst outrages from an authoritarian Scotus that recognizes no limits, not even God’s, and judges laws of its own making. Hamilton wrote, “A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.”4

Scotus decides issues between parties. As detailed in Parts I and II of this series, federal courts have no authority to create rights. When Scotus ruled in 1965 that Estelle T. Griswold on behalf of Planned Parenthood was entitled to buy contraceptives in Connecticut, the decision should have been limited to Connecticut. Congress could have, as Alexander Hamilton suggested, passed a law that restricted future Scotus cases involving contraception.

By design, the Framers supplied more checks against Scotus than they did against the other two branches. Of course. The Scotus is unaccountable to the people; therefore, it necessitated supplementary checks. Thanks to the incapacity of Congress due to the 17th Amendment, both Robert Yates and Alexander Hamilton were right. While the Scotus is indeed a runaway institution, the fault is not with the Framers’ Constitution.

1.Kenyon, C. M. (1966). The Anti-Federalists. Boston: Northeastern University Press. 351.
2. Federalist 78.
3. Ibid.
4. Federalist 81