Think of your forefathers!  Think of your posterity!                      —John Quincy Adams—


As if things weren’t bad enough in this interminable election cycle, the recent death of Supreme Court justice Antonin Scalia has added to the partisan posturing plaguing the nation.  With righteous indignation, Senate Republican leaders avow never to consider a replacement until after the coming election on the grounds that, to quote majority leader Mitch McConnell, “the American people should have a say in the Court’s direction.”  With righteous indignation, White House spokesmen present President Obama as a strict constitutionalist who is bound by his sworn oath to the law of the land to act immediately to fill the vacancy.

Let me be honest: I’m skeptical of both claims.  They strike me as equally self-interested and disingenuous.  But I’ve never wanted to make this blog overtly political, and the point of this series on the 2016 election is not to take sides but to put it in historical perspective.  Americans in 2016 are engaged in an ongoing debate about the role of government in a free society that began long before any of us arrived on the scene.  Why wouldn’t we want to learn from that conversation?  With John Quincy Adams, I think that listening to our ancestors is one of the best things we can do to serve our posterity.

Let’s start with Democratic appeals to the Constitution to arguing that President Obama was obligated to nominate a successor immediately.  It’s worth pointing out that the Constitution says almost nothing about the nomination process.  The Framers devoted a total of twenty words to the subject, and nearly half of them are and, of, by, or the.  Buried in a portion of a single sentence in Art. II, sect. 2, we read that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.”  Not a lot to go on there.

Imagine for a moment the following scenario: President Obama holds a press conference and announces, “Given that my party has lost control of both houses of Congress, and that Constitutionally any nomination that I might make requires the Senate’s approval, it makes sense to forego a nomination at this time and allow my successor to act.”  Would that be unconstitutional?  I don’t think so.  It might be politically irresponsible—not to mention utterly inconceivable—but it would be hard to twist it into a palpable violation of the Constitution, even if it meant postponing Scalia’s replacement an entire year.  The Constitution only requires that the legislative branch meet once a year, for goodness sake, and through the end of the nineteenth century Congress was in adjournment for nine months in every odd-numbered year, so the possibility that a seat could remain vacant for an extended period was ever present.

But my objection runs deeper than this.  Democratic appeals to the Constitution on the issue ring hollow because most Democrats long ago embraced a role for the Supreme Court that the Framers of the Constitution could have scarcely imagined.  In their essays promoting ratification, both James Madison and Alexander Hamilton insisted that the proposed Supreme Court would have the right and the responsibility to rule on the constitutionality of federal and state laws.  At the same time, however, they went out of their way to assure critics that the Court’s powers, though important, were limited.

Alexander Hamilton

Alexander Hamilton

Of the eighty-five essays in the Federalist Papers, only six focus on the judiciary (nos. 78-83), all of them written by Hamilton.  The New Yorker wrote to refute Anti-Federalist charges that the Framers at Philadelphia had created a monster that would run rough-shod over the prerogatives of the states and the liberties of the people.  In Federalist no. 78, for example, Hamilton led with the reminder that “the judiciary is beyond comparison the weakest of the three departments of power.”  Hear how he explains “the natural feebleness of the judiciary”:

 . . . the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.  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.  It may truly be said to have neither FORCE nor WILL but merely judgment.

In Federalist no. 81 Hamilton again sought to reassure his readers.  He acknowledged the popular fear that the Court would abuse its prerogatives to usurp the power of the legislature.  According to critics, the justices would be free to evaluate laws according to “the spirit of the Constitution,” rather than the strict letter of the document.  This in turn would enable the Court to mold the laws “into whatever shape it may think proper; especially as its decision will not be in any manner subject to the revision or correction of the legislative body.”

This “supposed danger . . . is in reality a phantom,” Hamilton insisted.  And why was this?  Because “there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.”

Bottom line: In 1787 the Framers of the Constitution believed that the Supreme Court would have “neither force nor will” and that “the general liberty of the people can never be endangered from that quarter.”  Does anyone believe this in 2016?

In my next post I’ll share what the Founders would have thought of the Republican claim that “the people” should influence the make-up of the Court.


  1. Jack Be Nimble

    Do you ever feel like you are speaking to an almost empty room? It seems that most people reject judicial activism only when it is contrary to their interests. Apparently Alexander Hamilton did not recognize the potential for the court to invent new “rights” out of the fabric of the Constitution. He was merely acting on the assumption that the actual words of the Constitution would be taken literally and adhered to by the court. For many years the Supreme Court was a minor player but circumstances gave it the opportunity to play a decisive role especially when the legislative process seemed deadlocked or unresponsive to issues in the society. These issues were in this situation because the country was seriously divided over them and the mere ruling of the Supreme Court did little to bring both sides together. As Brian suggested, the rulings only inflamed the divisions. But I fear that now that we have gone so far down the path of judicial activism, we may beyond the point of no return.

  2. I look forward to the next post!

  3. Now that both sides have been scorched by judicial activism, I think people across the political spectrum might come to see the wisdom of greater judicial restraint. Whatever we may think of the reasoning behind activist rulings, they tend to prolong and inflame political conflicts rather than resolve them (cf., Dred Scott, Brown, Roe, Bush v. Gore, Citizens United, etc.).

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