Liberty and Freedom
Debate Involving Formation of Supreme Court
This was written as a response to Scott Arnett in Tia Giza's blog involving the role of the Supreme Court and minority groups. I figured I'd post it here in case anyone else was interested as well:
Scott Arnett:
I’m not going to say that you’re wrong – what you’ve described is mostly correct but the minority thing I’ve been saying is true. I just don’t think I’ve done a very good job in explaining it or getting across what I’m trying to say. So I’ll try and explain it better here, and I’ll post this as a thread, too. All of the information I’m about to discuss is within the Federalist Papers, and it’s Federalist Paper number 78 if you wish to read it, and I urge everyone to. You can google it and there will be websites that display the text in its entirety. It does a great job of describing the debate between Federalists and Anti-Federalists about the Supreme Court and how it should function, and both sides have great points.
I’ll try to summarize the point of view of both sides in order to try and make this brief. The idea of a Supreme Court was controversial due to its function (the potential ability to negate laws enacted by the legislature) and its makeup (lifetime tenure on the condition of good behavior). The Anti-Federalists argued the negation of laws created by representatives of the people by a panel of judges appointed life tenure – and thus not answerable to the people by elections – was nothing short of outrageous and against the very spirit of the American Constitution. Alexander Hamilton, a staunch Federalist, disagreed and wrote his response in the Federalist Paper number 78.
Hamilton argued checks and balances were created to ensure the Supreme Court wouldn’t grow too powerful, chiefly “cutting off its legs” as one of my old teachers used to say. Essentially, as we all know, the Supreme Court can’t just strike down any law it disagrees with. A controversy has to arise first and it has to actually be brought to the Supreme Court, and even then the Court may refuse to hear the case.
Hamilton argued further that not allowing a panel of judges a chance to examine laws created by the legislature would be the equivalent of allowing Congress to judge the merits of its own laws, something he felt was improper. Hamilton believed there should be a neutral third party allowed to ensure laws being passed held true with the letter and spirit of the Constitution. He has two potent quotes on the matter within number 78, and I’ll put them below:
“It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
“There is no liberty if the power of judging be not separated from the legislative and executive powers.”
I’m a visual person and usually have to use an example to fully understand what I’m being taught, so I’ll use an example here. Let’s say (and this is obviously a hypothetical that would never occur) Congress wanted to pass a law which made all people with blues eyes second-class citizens – they have separate schools, inferior housing, have to eat last at Old Country Buffet, all that stuff. This movement had been spurred by a scientific report that showed blue-eyed individuals only have 80% of our DNA, and thus have been viewed as sub-human. The movement to treat blue-eyed people as second-class citizens is extremely popular and is actually one issue Democrats and Republicans can agree upon. Being outraged themselves, a group of blue-eyed people sue and the Supreme Court agrees to hear the case and negates the law as unconstitutional. Can a group of unelected, lifetime-appointed judges overturn a law that was extremely popular with the people and also passed by Congress?
Alexander Hamilton wrote, “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors…and which…have a tendency…to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
I edited the quote above to keep it short but I assure you the full text is within number 78. I’d be more than willing to post the entire thing if you’d like. Anyway, the above quote is what I was referring to – Hamilton argued that Supreme Court justices needed to be given life tenure in order to not be pressured into decisions by outside sources. With this ability the Supreme Court could strike down extraordinarily popular laws that are unconstitutional and discriminate against a “minor party” that doesn’t have the political strength to protect itself. A real life example would be the Civil Rights movement of African-Americans during the 1960s.
So yes, one of the critical functions of the Supreme Court’s initial creation was to protect groups who could not protect themselves. That being said, both the Anti-Federalists and Federalists have really strong arguments, in my opinion. It also shows there was just as heated of a debate about the Supreme Court then as there is now.
Hopefully that cleared up the point I was trying to get across.
Scott Arnett:
I’m not going to say that you’re wrong – what you’ve described is mostly correct but the minority thing I’ve been saying is true. I just don’t think I’ve done a very good job in explaining it or getting across what I’m trying to say. So I’ll try and explain it better here, and I’ll post this as a thread, too. All of the information I’m about to discuss is within the Federalist Papers, and it’s Federalist Paper number 78 if you wish to read it, and I urge everyone to. You can google it and there will be websites that display the text in its entirety. It does a great job of describing the debate between Federalists and Anti-Federalists about the Supreme Court and how it should function, and both sides have great points.
I’ll try to summarize the point of view of both sides in order to try and make this brief. The idea of a Supreme Court was controversial due to its function (the potential ability to negate laws enacted by the legislature) and its makeup (lifetime tenure on the condition of good behavior). The Anti-Federalists argued the negation of laws created by representatives of the people by a panel of judges appointed life tenure – and thus not answerable to the people by elections – was nothing short of outrageous and against the very spirit of the American Constitution. Alexander Hamilton, a staunch Federalist, disagreed and wrote his response in the Federalist Paper number 78.
Hamilton argued checks and balances were created to ensure the Supreme Court wouldn’t grow too powerful, chiefly “cutting off its legs” as one of my old teachers used to say. Essentially, as we all know, the Supreme Court can’t just strike down any law it disagrees with. A controversy has to arise first and it has to actually be brought to the Supreme Court, and even then the Court may refuse to hear the case.
Hamilton argued further that not allowing a panel of judges a chance to examine laws created by the legislature would be the equivalent of allowing Congress to judge the merits of its own laws, something he felt was improper. Hamilton believed there should be a neutral third party allowed to ensure laws being passed held true with the letter and spirit of the Constitution. He has two potent quotes on the matter within number 78, and I’ll put them below:
“It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
“There is no liberty if the power of judging be not separated from the legislative and executive powers.”
I’m a visual person and usually have to use an example to fully understand what I’m being taught, so I’ll use an example here. Let’s say (and this is obviously a hypothetical that would never occur) Congress wanted to pass a law which made all people with blues eyes second-class citizens – they have separate schools, inferior housing, have to eat last at Old Country Buffet, all that stuff. This movement had been spurred by a scientific report that showed blue-eyed individuals only have 80% of our DNA, and thus have been viewed as sub-human. The movement to treat blue-eyed people as second-class citizens is extremely popular and is actually one issue Democrats and Republicans can agree upon. Being outraged themselves, a group of blue-eyed people sue and the Supreme Court agrees to hear the case and negates the law as unconstitutional. Can a group of unelected, lifetime-appointed judges overturn a law that was extremely popular with the people and also passed by Congress?
Alexander Hamilton wrote, “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors…and which…have a tendency…to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
I edited the quote above to keep it short but I assure you the full text is within number 78. I’d be more than willing to post the entire thing if you’d like. Anyway, the above quote is what I was referring to – Hamilton argued that Supreme Court justices needed to be given life tenure in order to not be pressured into decisions by outside sources. With this ability the Supreme Court could strike down extraordinarily popular laws that are unconstitutional and discriminate against a “minor party” that doesn’t have the political strength to protect itself. A real life example would be the Civil Rights movement of African-Americans during the 1960s.
So yes, one of the critical functions of the Supreme Court’s initial creation was to protect groups who could not protect themselves. That being said, both the Anti-Federalists and Federalists have really strong arguments, in my opinion. It also shows there was just as heated of a debate about the Supreme Court then as there is now.
Hopefully that cleared up the point I was trying to get across.
Replies to This Discussion
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Permalink Reply by Scott Arnett on -
Rightly so. The other side of the coin is not to elevate the rights of a minority above the majority. This is where Obama and Sodomeyor are wrong. The empathy belief has no business on the court.
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Permalink Reply by Thomas Paine on -
Scott Arnett:
Would you say the ending of segregation "elevat(ed) the rights" of African-Americans above whites or other groups? Or was it merely protecting them from discriminatory laws that African-Americans didn't have the strength to protect themselves from?
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Permalink Reply by Peter Buxton on -
The "end of segregation" ended with the Civil Rights Acts of 64-65. The Court's only role in that was overturning the legal horror of Plessy v. Ferguson in Brown v. Board of Education. Soon after, the Court decided to mess with bus routes and trimesters.
No one has taken it seriously since.
Once upon a time, Supreme Court justices would routinely resign after 5-7 years and return to private practice. No longer.
It is obvious to me that affirmative action is a debacle. Had we been braver in the late 1960s, we could have voted monetary reparations for slavery from 1776 to 1865. Direct employment with the government, and contracts, could be monitored for minimum minority involvement. But private companies would be left to wrestle with that decision themselves.
Women now outnumber men at colleges. Don't expect the feminist grievance industry to go away anytime soon.
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Permalink Reply by Scott Arnett on
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No, I would not. We are all equal in the eyes of God. All Americans deserve the best education possible. Sadly, that is not what our kids are getting today. This feeds there disillusionment. I cannot descibe the sadness in my heart for minorities who to this day are dumbed down to. The potential for them is equal to anyone. I personnally am involved in outreach to change this perception any way I can. When 47% of African Americans in Detroit, graduate from high school and are functionally illiterate, something is wrong. I suggest Thomas Sowell for insight.
Thomas Paine said:Scott Arnett:
Would you say the ending of segregation "elevat(ed) the rights" of African-Americans above whites or other groups? Or was it merely protecting them from discriminatory laws that African-Americans didn't have the strength to protect themselves from?
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