The Evils of Supreme Court Democracy (Part I)

This article is based off Randy E Barnett’s book: Our Republican Constitution. Randy is a Georgetown Law professor who was involved in the ObamaCare Supreme Court case as well as Gonzales v. Raich. Our Founding Fathers did not create a Democracy, they created a Republic. “We the people” of the constitution does not mean that government protects the rights of the majority, instead it means that government protects the rights of all individuals. First comes our rights then comes government to protect those rights. The Constitution fails to meet Democracy criteria (majority rule) in many respects: The Electoral College, the Senate, the presidential veto power, separation of powers, and only specific enumerated powers for the federal government to name a few. However, it is the Ninth and Tenth Amendments that have the language of a Republic. The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The important language in these amendments are the phrases “retained by the people” and “or to the people”. This language implies that the individual people are sovereign and government’s role is to protect the rights of the individual person. James Madison explains in Federalist 10 why Democracies do not work. Madison explains how factions of groups form and those factions with the most power are the majority. Madison’s theory was that a country the size of the United States can marginalize the effects of factions (probably true before technology). In Federalist 45 Madison explains how the Federal Government powers are few and defined while the state powers are many and unlimited. In Federalist 78 Hamilton explains that it is the “duty” of the Supreme Court to keep the Legislative Branch in check from encroaching on its powers: “declare all acts contrary to the manifest tenor of the Constitution void”. However, in Madison v. Marbury in 1803 the decision to implement “judiciary review” clearly infringed on Hamilton’s viewpoint in Federalist 78. Judiciary review means the Supreme Court can only rule on cases that are brought before the court via lawsuit. Hamilton proposes all laws be reviewed for constitutionality regardless of judicial status.

So what are the fundamental (natural) rights of individuals that government is to preserve at all cost? These can be found in the Declaration of Independence, Constitution, and in the Constitution of many states. Those rights include: Life, liberty, happiness, safety, and acquiring, possessing, and protecting property. These are our fundamental “natural rights” that we are born with. In Chisholm v. Georgia (1793) the Court ruled that individual citizens could sue state governments because sovereignty rests with the people as Justice James Wilson proclaimed in his majority decision. Only Justice James Iredell sided with Georgia invoking “legislative power” of the majority holds sovereign power over the individual person. However, the ratification of the Eleventh Amendment in 1795 superseded the Chisholm decision. In 1890 the case Hans v. Louisiana the Court’s Justice Bradley overruled the principals of sovereignty held in Chisholm by siding with the views held by a single Justice in that decision: Iredell. Justice Bradley also conveniently ignored Justice John Marshall’s view in Fletcher v. Peck. Marshall said individuals suing state governments may no longer be in the constitution, but Chisholm was the proper interpretation of the intent of the Constitution. In other words, the Eleventh Amendment does not change the meaning of the Constitution, it merely prohibits citizens from suing states. Hence, despite the Eleventh Amendment citizens are still sovereign within the structure of the Constitution. Marshall was not perfect however, when he ruled that the National Bank proposed by Hamilton two decades earlier was constitutional in Maryland v. McCulloch (1819). Marshal used the same necessary and proper clause argument proposed by Hamilton. The ends in McCulloch may have justified the means (collect taxes), but there were less evasive and complicated means to obtain the ends without encroaching on state rights and therefore in my view the law was not rationale. The decision may had been different if it was decided at the time it was being debated in Congress. Andrew Jackson would abolish the United States bank 15 years later proving it was not “necessary”.