If there has ever been a case that could vindicate the Supreme Court as a guardian of liberty or incriminate it as freedom's thief, it is the court's present consideration of the Affordable Care Act.
At the founding of the republic, the Anti-Federalist opponents of the Constitution warned that to grant the power to declare laws unconstitutional to an unelected and life-tenured Supreme Court could subvert the democratic republic and threaten our liberties.
In the Anti-Federalist papers, "Brutus" argued that though there would be strong checks on the other two branches of government, the power of judicial review would give the court the final say in overturning laws enacted by the people's elected representatives in Congress and make the unaccountable judicial branch superior to the elected legislative branch.
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Brutus wrote: "The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. ... The judges in England are under the control of the legislature ... but the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. ... (The authors of the constitution) have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions."
This was particularly dangerous, argued Brutus, because "when great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it." And "this responsibility, he said, "should ultimately rest with the people."
But under the proposed constitution, he noted, the court would be "independent of the people, of the legislature, and of every power under heaven." Anticipating Lord Acton's now-famous maxim that "absolute power corrupts absolutely," Brutus continued, "Men placed in this situation will generally soon feel themselves independent of heaven itself." Indeed, Brutus observed that judges could only be removed for improper conduct or "high crimes and misdemeanors"; they could not be impeached for errors in their judgment.
Alexander Hamilton fought back in Federalist No. 78, pointing out that the judicial branch would "always be the least dangerous to the political rights of the constitution," because it would "be least in a capacity to annoy or injure them." By this, he meant that the judicial scope and function was much more narrowly prescribed than those of the other two branches. "The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."
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To reinforce the idea that the judiciary was to be a weaker, passive branch – only empowered to hear cases brought to it – he wrote, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In fact, he said, "the judiciary is beyond comparison the weakest of the three departments."
Hamilton argued that contrary to assertions that judicial review would dilute republican government – divesting elected representatives of their authority – it actually would strengthen it, because the court would ensure that the Constitution, which is the ultimate expression of the people's will, would remain superior to mere acts of legislation. He also anticipated that scholarly men of virtue, independent of political pressures, would render their decisions based on the law and facts.
It can hardly be denied that some of Brutus' fears have been realized through the years. The courts have hardly remained as limited in scope or as passive as theory suggested they would be. The court has, in many areas, become a super-legislature of expansive scope and, as a practical matter, is not always a passive body, because activist groups have become so mobilized, organized and manipulative that they can manufacture a "case or controversy" on almost any important issue at the drop of a hat. Plus, though most Supreme Court justices have indeed been learned, many have long since abdicated their duty to interpret the Constitution dispassionately and have adopted an activist, results-oriented approach to jurisprudence, which has systematically corrupted the integrity of the Constitution and, thus, of the rule of law and republican government.
The question is whether the court will strike down the manifestly unconstitutional Affordable Care Act and vindicate Alexander Hamilton or uphold it and thereby hammer yet one more nail in the coffin of this nation's precious liberty.