Writing under the pseudonym “Publius,” Hamilton outlined the principles of judicial review in Federalist No. 78, explaining:
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, as well as the meaning of any particular act proceeding from the legislative body.
Hamilton was aware of the potential for overreach, but he believed the federal judiciary would prove “the least dangerous” of the Constitution’s three branches of government. Unlike Congress and the president, he reasoned, the courts would have “no influence over either the sword or purse,” but would possess “only judgment,” rendering them repositories of detached wisdom and impartiality. To put it plainly, his argument was that we could trust the judges.
Hamilton got a lot right about the need for judicial independence, but the faith he placed in the president and the Senate to select and confirm only well-qualified judges was egregiously wrong.
This was a novel and highly controversial idea at the time and remains a subject of contention nearly 240 years later.
Among the earliest dissenters was New York state Judge Robert Yates, a delegate to the 1787 Constitutional Convention. Yates feared that the power of judicial review would result in judicial supremacy, and historians consider him the probable author of several anti-federalist tracts published under the pen name of “Brutus.”
In Anti-Federalist essay No. 14, Brutus rebuked Hamilton, writing that under the new Constitution, the Supreme Court “would be exalted above all other power in the government, and subject to no control.” In No. 15, Brutus added in words that echo eerily to the present that the Supreme Court
[will] have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. … Men placed in this situation will generally soon feel themselves independent of heaven itself.
Hamilton’s position triumphed, and a Supreme Court equipped with judicial review became official doctrine with the landmark 1803 decision in Marbury v. Madison. But the triumph came with a price. Although it is difficult to imagine an independent court system that lacked authority to invalidate legislative and executive acts, judicial review has proven to be a two-edged sword. It has been wielded at times to advance democratic ideals (Brown v. Board of Education) but at others to thwart, damage and reverse those ideals (Dred Scott v. Sandford, Plessy v. Ferguson, and the cases invalidating key legislative pieces of the early New Deal).
We are in one of the dark periods now. With Roberts at the helm, the Supreme Court has used the power of judicial review to tack hard to the right on a number of fronts: reinterpreting the Second Amendment to include an individual right to bear arms, undermining the legal foundations of union organizing, removing political gerrymandering from the jurisdiction of federal courts, opening election campaigns to unlimited spending by corporations and wealthy individual donors, overturning the right to abortion, endowing the president with immunity for official acts and neutering the Voting Rights Act.
Hamilton got a lot right about the need for judicial independence, but the faith he placed in the president and the Senate to select and confirm only well-qualified judges was egregiously wrong. While he lived long enough to see Supreme Court Justice Samuel Chase impeached by the House of Representatives in 1804 (he died in a duel with Aaron Burr before Chase’s acquittal in the upper chamber), he scarcely could have imagined a court completely dominated by a chief justice who has falsely portrayed himself as an institutionalist committed to calling “balls and strikes,” and a supporting cast of grifters, ideologues and political hacks. He also likely would have been surprised to see how Roberts and his confederates have fulfilled Brutus’ fears by elevating themselves to the status of unaccountable and inscrutable Delphian oracles, who deign to tell the rest of us that they alone get to determine what the Constitution means.
The Roberts court’s rollback of constitutional rights is deeply unpopular, as reflected in recent polling showing that the court faces a legitimacy crisis of its own making. The rollback has sparked renewed calls for structural reforms, ranging from the imposition of term limits to restrictions on the court’s appellate jurisdiction and an expansion of the bench to as many as 13 members. Accomplishing any of these, however, will require Democrats to do three things: stiffen their spines, take back both houses of Congress and win the presidency. Even then, reforms will be difficult to achieve and slow to implement.
In the meantime, we need a theory of constitutional interpretation and reform to rival and ultimately displace the “originalism” that Roberts and his forerunners have deployed to engineer the right’s takeover of the Supreme Court. Fortunately, one such alternative, known as “popular constitutionalism,” already exists and is gaining traction.
As set forth by the legal scholar Larry Kramer in his 2004 book, “The People Themselves: Popular Constitutionalism and Judicial Review,” popular constitutionalism is the idea that “the people” — not as an abstract concept but as actual engaged citizens — are the ultimate source of constitutional meaning rather than the nine unelected black-robed members of the Supreme Court. We may be legally bound by the court’s rulings, but we have the right to criticize them, promote alternative interpretations and take peaceful action to overturn wrongly decided cases through voting, demonstrations, litigation, legislation, impeachment, amendments to the Constitution and a myriad of other means.
As New York Times columnist Jamelle Bouie wrote in June:
Constitutional meaning deals with the shape and structure of our political community. And as much as courts help build our collective constitutional understanding, the question of meaning is as much the purview of the public as it is the job of a jurist. … It is only in the last half-century, in fact, that we have fully conflated legal decision-making with the production of constitutional meaning. The result … is a strong form of judicial supremacy, where the meaning of the Constitution and therefore the structure of our political community are fixed in place by the decisions of a small, cloistered and often self-interested tribunal.
Even Hamilton, the principal proponent of judicial review, conceded in Federalist 78 that his vision for the courts “did not by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both. …”
There are a number of examples from the past that illustrate popular constitutionalism in action — the ratification of the 13th, 14th and 15th Amendments, the passage of the Civil Rights Acts of the 1950s and ’60s, and more recently, the recognition of same-sex marriage, to cite just a few.
This summer, the legal commentators at Slate launched a series of articles and podcasts called By the People to renew this tradition. The series unpacks the history of popular constitutionalism and provides a guide to citizen involvement. After a brief hiatus, the series will resume in the fall, just as the Supreme Court convenes for another harrowing term.
It will take a long time to produce meaningful change, but as we move forward, we should remember that it took the radical right decades of organizing by groups like the Federalist Society and the promotion of originalism to highjack the Supreme Court. With that history in mind, we need to prepare for a marathon, not a sprint. More than anything else, we must be prepared to win.
