VIII.3: Anti-Federalist Objections to Judicial Review

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Anti-Federalist Objections to Judicial Review

The Federalists were the people who wrote the US Constitution. And the Anti-Federalists were those who fought against it.

There were Anti-Federalists in the Constitutional Convention. And there were more in the state conventions for ratifying the US Constitution. Both groups were united against the Federalists’ expansion of power in the courts. In particular, there were many Anti-Federalist objections to judicial review. For example:

The Convention of the State of New York … said: “That the jurisdiction of the Supreme Court … is not in any way to be increased, enlarged, or extended by any fiction, collusion, or mere suggestion.” (Pierce 1908, 211)

And George Mason, an Anti-Federalist, wrote:

The judicial power shall extend to all cases in law and equity arising under this Constitution.” What objects will not this expression extend to? Such laws may be formed as will go to every object of private property. … [T]hey will be the judges how far their laws will operate. They are to modify their own courts, and you can make no state law to counteract them. (Mason 1788)

Moreover, an Anti-Federalist using the pen name “Brutus” wrote:

They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them … nor can they be removed from office for making ever so many erroneous adjudications. … This part of the plan is so modeled as to authorize the courts … to supply what is wanting [in the Constitution] by their own decisions. … [T]hey are empowered, to explain the Constitution according to the reasoning spirit of it, without being confined to the words or letter. … This power in the judicial will enable them to mould the government into almost any shape they please. (Brutus 1787)

James Madison was a Federalist when the Constitution was written. But later he developed his own Anti-Federalist objections to judicial review.

In fact, when the Federalists gained control of all three branches of government, Madison joined with the Democratic-Republicans against them. In particular, he believed the Federalists held too much power through Supreme Court Chief Justice John Marshall. Consequently, he wrote:

The states, then, being the parties to the constitutional compact … there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated…. (Madison 1800)

The several departments being perfectly co-ordinate …, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments … to be redressed, without an appeal to the people themselves….. (Madison 1788a)

[R]efusing or not refusing to execute a law .… makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper. (Madison 1788b)

Were the Anti-Federalists’ fears unfounded? Were they paranoid? Or did they accurately predict how the judiciary would behave under the US Constitution? Moreover, should we consider the opinions of James Madison regarding questions of judicial authority?

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Sources:

Brutus. 1787. The Power of the Judiciary (Part 2). Teaching American History. http://teachingamericanhistory.org/library/document/the-problem-of-judicial-review (Accessed Feb. 6, 2019)

Madison James. 1788a. Paper No. 49. In The Federalist Papers by Alexander Hamilton, James Madison and John Jay.

Madison, James. 1788b. Observations on Jefferson’s Draft of a Constitution for Virginia on Oct. 15. University of Chicago Press. http://press-pubs.uchicago.edu/founders/documents/v1ch17s25.html (Accessed Jun. 28, 2018).

Madison, James. 1800. “The Report of 1800, [7 January] 1800,” Founders Online, National Archives, version of January 18, 2019, https://founders.archives.gov/documents/Madison/01-17-02-0202. [Original source: The Papers of James Madison, vol. 17, 31 March 1797–3 March 1801 and supplement 22 January 1778–9 August 1795, ed. David B. Mattern, J. C. A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue. Charlottesville: University Press of Virginia, 1991, pp. 303–351.] (Accessed Jul. 29, 2018).

Mason, George. 1788. Elliot’s Debates: Volume 3 – In Convention, Richmond, Thursday, June 19, 1788. Teaching American History. http://teachingamericanhistory.org/ratification/elliot/vol3/june19/ (Accessed Feb. 6, 2019)

Pierce, Franklin. 1908. Federal Usurpation. New York: D. Appleton and Company.

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