The Anti-Federalist Papers | Brutus 15
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The Anti-Federalist Papers | Brutus 15


I said in my last number, that the supreme
court under this constitution would be exalted above all other power in the government, and
subject to no controul. The business of this paper will be to illustrate
this, and to shew the danger that will result from it. I question whether the world ever saw, in
any period of it, a court of justice invested with such immense powers, and yet placed in
a situation so little responsible. Certain it is, that in England, and in the
several states, where we have been taught to believe, the courts of law are put upon
the most prudent establishment, they are on a very different footing. The judges in England, it is true, hold their
offices during their good behaviour, but then their determinations are subject to correction
by the house of lords; and their power is by no means so extensive as that of the proposed
supreme court of the union. – I believe they in no instance assume the
authority to set aside an act of parliament under the idea that it is inconsistent with
their constitution. They consider themselves bound to decide according
to the existing laws of the land, and never undertake to controul them by adjudging that
they are inconsistent with the constitution – much less are they vested with the power
of giving an equitable construction to the constitution. The judges in England are under the controul
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 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 framers of this constitution appear to
have followed that of the British, in rendering the judges independent, by granting them their
offices during good behaviour, without following the constitution of England, in instituting
a tribunal in which their errors may be corrected; and without adverting to this, that the judicial
under this system have a power which is above the legislative, and which indeed transcends
any power before given to a judicial by any free government under heaven. I do not object to the judges holding their
commissions during good behaviour. I suppose it a proper provision provided they
were made properly responsible. But I say, this system has followed the English
government in this, while it has departed from almost every other principle of their
jurisprudence, under the idea, of rendering the judges independent; which, in the British
constitution, means no more than that they hold their places during good behaviour, and
have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul
any of their decisions. There is no authority that can remove them,
and they cannot be controuled by the laws of the legislature. In short, they are independent of the people,
of the legislature, and of every power under heaven. Men placed in this situation will generally
soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of
these assertions, I beg liberty to make one remark – Though in my opinion the judges
ought to hold their offices during good behaviour, yet I think it is clear, that the reasons
in favour of this establishment of the judges in England, do by no means apply to this country. The great reason assigned, why the judges
in Britain ought to be commissioned during good behaviour, is this, that they may be
placed in a situation, not to be influenced by the crown, to give such decisions, as would
tend to increase its powers and prerogatives. While the judges held their places at the
will and pleasure of the king, on whom they depended not only for their offices, but also
for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point,
to accomplish which the aid of the courts of law was necessary, the pleasure of the
king would be signified to the judges. And it required the spirit of a martyr, for
the judges to determine contrary to the king’s will. – They were absolutely dependent upon him
both for their offices and livings. The king, holding his office during life,
and transmitting it to his posterity as an inheritance, has much stronger inducements
to increase the prerogatives of his office than those who hold their offices for stated
periods, or even for life. Hence the English nation gained a great point,
in favour of liberty. When they obtained the appointment of the
judges, during good behaviour, they got from the crown a concession, which deprived it
of one of the most powerful engines with which it might enlarge the boundaries of the royal
prerogative and encroach on the liberties of the people. But these reasons do not apply to this country,
we have no hereditary monarch; those who appoint the judges do not hold their offices for life,
nor do they descend to their children. The same arguments, therefore, which will
conclude in favor of the tenor of the judge’s offices for good behaviour, lose a considerable
part of their weight when applied to the state and condition of America. But much less can it be shewn, that the nature
of our government requires that the courts should be placed beyond all account more independent,
so much so as to be above controul. I have said that the judges under this system
will be independent in the strict sense of the word: To prove this I will shew – That
there is no power above them that can controul their decisions, or correct their errors. There is no authority that can remove them
from office for any errors or want of capacity, or lower their salaries, and in many cases
their power is superior to that of the legislature. 1st. There is no power above them that can correct
their errors or controul their decisions – The adjudications of this court are final and
irreversible, for there is no court above them to which appeals can lie, either in error
or on the merits. – In this respect it differs from the courts
in England, for there the house of lords is the highest court, to whom appeals, in error,
are carried from the highest of the courts of law. 2d. They cannot be removed from office or suffer
a dimunition of their salaries, for any error in judgement or want of capacity. It is expressly declared by the constitution,
– “That they shall at stated times receive a compensation for their services which shall
not be diminished during their continuance in office.” The only clause in the constitution which
provides for the removal of the judges from office, is that which declares, that “the
president, vice-president, and all civil officers of the United States, shall be removed from
office, on impeachment for, and conviction of treason, bribery, or other high crimes
and misdemeanors.” By this paragraph, civil officers, in which
the judges are included, are removable only for crimes. Treason and bribery are named, and the rest
are included under the general terms of high crimes and misdemeanors. – Errors in judgement, or want of capacity
to discharge the duties of the office, can never be supposed to be included in these
words, high crimes and misdemeanors. A man may mistake a case in giving judgment,
or manifest that he is incompetent to the discharge of the duties of a judge, and yet
give no evidence of corruption or want of integrity. To support the charge, it will be necessary
to give in evidence some facts that will shew, that the judges commited the error from wicked
and corrupt motives. 3d. The power of this court is in many cases superior
to that of the legislature. I have shewed, in a former paper, that this
court will be authorised to decide upon the meaning of the constitution, and that, not
only according to the natural and ob[vious] meaning of the words, but also according to
the spirit and intention of it. In the exercise of this power they will not
be subordinate to, but above the legislature. For all the departments of this government
will receive their powers, so far as they are expressed in the constitution, from the
people immediately, who are the source of power. The legislature can only exercise such powers
as are given them by the constitution, they cannot assume any of the rights annexed to
the judicial, for this plain reason, that the same authority which vested the legislature
with their powers, vested the judicial with theirs – both are derived from the same
source, both therefore are equally valid, and the judicial hold their powers independently
of the legislature, as the legislature do of the judicial. – The supreme court then 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. If, therefore, the legislature pass any laws,
inconsistent with the sense the judges put upon the constitution, they will declare it
void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject
to have their decisions set aside by the house of lords, for error, but in cases where they
give an explanation to the laws or constitution of the country, contrary to the sense of the
parliament, though the parliament will not set aside the judgement of the court, yet,
they have authority, by a new law, to explain a former one, and by this means to prevent
a reception of such decisions. But no such power is in the legislature. The judges are supreme – and no law, explanatory
of the constitution, will be binding on them. From the preceding remarks, which have been
made on the judicial powers proposed in this system, the policy of it may be fully developed. I have, in the course of my observation on
this constitution, affirmed and endeavored to shew, that it was calculated to abolish
entirely the state governments, and to melt down the states into one entire government,
for every purpose as well internal and local, as external and national. In this opinion the opposers of the system
have generally agreed – and this has been uniformly denied by its advocates in public. Some individuals, indeed, among them, will
confess, that it has this tendency, and scruple not to say, it is what they wish; and I will
venture to predict, without the spirit of prophecy, that if it is adopted without amendments,
or some such precautions as will ensure amendments immediately after its adoption, that the same
gentlemen who have employed their talents and abilities with such success to influence
the public mind to adopt this plan, will employ the same to persuade the people, that it will
be for their good to abolish the state governments as useless and burdensome. Perhaps nothing could have been better conceived
to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of
the general government gradually, and by insensible degrees, and to accomodate themselves to the
temper of the people. Their decisions on the meaning of the constitution
will commonly take place in cases which arise between individuals, with which the public
will not be generally acquainted; one adjudication will form a precedent to the next, and this
to a following one. These cases will immediately affect individuals
only; so that a series of determinations will probably take place before even the people
will be informed of them. In the mean time all the art and address of
those who wish for the change will be employed to make converts to their opinion. The people will be told, that their state
officers, and state legislatures are a burden and expence without affording any solid advantage,
for that all the laws passed by them, might be equally well made by the general legislature. If to those who will be interested in the
change, be added, those who will be under their influence, and such who will submit
to almost any change of government, which they can be persuaded to believe will ease
them of taxes, it is easy to see, the party who will favor the abolition of the state
governments would be far from being inconsiderable. – In this situation, the general legislature,
might pass one law after another, extending the general and abridging the state jurisdictions,
and to sanction their proceedings would have a course of decisions of the judicial to whom
the constitution has committed the power of explaining the constitution. – If the states remonstrated, the constitutional
mode of deciding upon the validity of the law, is with the supreme court, and neither
people, nor state legislatures, nor the general legislature can remove them or reverse their
decrees. Had the construction of the constitution been
left with the legislature, they would have explained it at their peril; if they exceed
their powers, or sought to find, in the spirit of the constitution, more than was expressed
in the letter, the people from whom they derived their power could remove them, and do themselves
right; and indeed I can see no other remedy that the people can have against their rulers
for encroachments of this nature. A constitution is a compact of a people with
their rulers; if the rulers break the compact, the people have a right and ought to remove
them and do themselves justice; but in order to enable them to do this with the greater
facility, those whom the people chuse at stated periods, should have the power in the last
resort to determine the sense of the compact; if they determine contrary to the understanding
of the people, an appeal will lie to the people at the period when the rulers are to be elected,
and they will have it in their power to remedy the evil; but when this power is lodged in
the hands of men independent of the people, and of their representatives, and who are
not, constitutionally, accountable for their opinions, no way is left to controul them
but with a high hand and an outstretched arm.

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