So, what was the greatest fear of the Founding Fathers concerning the integrity of the Constitution? These were simpler and more honest times, and The Framers didn’t make much fuss about Democracy when they thought it makes sense to strangle it a bit. For example, Alexander Hamilton was pretty frank about the source of danger in his speeches and writings:
“All communities divide themselves into the few and the many. The first are the rich and the well-born; the other the mass of the people … turbulent and changing, they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the Government … Nothing but a permanent body can check the imprudence of democracy.”
In the Federalist Paper #78, opening the discussion on Judiciary, he doesn’t mention much the Executive branch as a possible source of danger to the Constitution, ridicules the very idea that the threat may come from the Judiciary, but goes a long way in describing a menace of the popular opinion and the Legislative branch which represents it. And who would guard the Constitution from the infringements of the will of people? Of course, it’s the powerful Judiciary:
“The independence of the judges is equally requisite to guard the Constitution … from the effects of these ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves … have a tendency … to occasion dangerous innovations in the government.”
“… it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”
In the same Paper, discussing the organizational principles of Judiciary branch and its place among other branches, Hamilton references The Spirit of Laws, and, based on, how he portrays, by citing it out of the context, Montesquieu’s opinion that the Judiciary is the weakest branch of all, so no harm allegedly may come to the Constitution from it, he proposes to give the Supreme Court unprecedented powers.
But that contradicts all what Montesquieu tried to convey to his readers. What has happened there? Had Hamilton poorly understood the French original or read a bad translation of The Spirit of Laws? Or he and the thinking public just didn’t get the idea that, because the Judiciary possesses potentially a huge destructive power, it has to be explicitly weakened, but not given more powers because it’s already weak? That the defining voice should belong to the jurors, and the business of judges would be rather formulating jurors’ opinions in the legal language? That the judges have to be rotated, and the court itself should not have the final word? All these things which were explicitly stated in the Book 11, Chapter 6, of The Spirit of Laws, where Hamilton took his quote from.
Of course not, participants of the constitutional Debate didn’t buy the flawed Hamilton’s argument. “Brutus” (most likely pseudonym of judge John Yates) caught that danger right away in his “Antifederalist” Papers concerning the Judiciary:
“There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
“The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution…”
“… they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.”
“… a trial by jury … will soon become … [a] mere matter of form; for an appeal may be had to supreme court on the whole merits.”
However, the Hamilton’s deception, in a form of a poor balanced, over-powerful Supreme Court, with the life-tenured Justices and the obscure procedure of bringing cases forward, found its way into The Constitution and stayed there until the nowadays, butchering the American life, history and common sense over the centuries in such (in)famous rulings like XIX-th century Johnson vs M’Intosh, which lead to the extermination of Native Americans, Dred-Scott, which lead the Country to the Civil War, post-Reconstruction rulings narrowing the meaning of XIV-th amendment, pawing the legal space for Jim Crow Laws, effectively prolonging racial segregation until 1960’s, opposition of the Supreme Court to the Franklin Delano Roosevelt’s New Deal in XX century, which was overcome by Roosevelt’s political longevity, when he literally over-lived Supreme Justices and had appointed new ones, and the Citizens United case of our century, which effectively has rewritten the Constitution in a manner: “We the People and Corporations of the United States…”.
The last case was a crystal clear illustration of how lousy was the Hamilton’s argument that the Judiciary “have neither FORCE nor WILL”, and that “the general liberty of the people can never be endangered from that quarter”. Oh, yeah, the Supreme Court has its WILL, and a pretty strong, dangerous one, as we saw in the Citizens United case, where the Court not only came up with the very broad ruling, which threatens the peoples’ liberty by effectively giving equal rights to corporations, but it has also rejected the initial formulation of the case and explicitly asked plaintiff to widen the complaint, which would allow the Court to rule such a far-reaching decision.
This decision caused a wide public outrage, with, according to polls, 80% disagreement with the Court’s ruling. But what do you know, comparing to Hamiltonian view that, if the popular opinion conforms his vision of Constitution, it should be praised: “…the intention of the people [ought to be preferred] to the intention of their agents … the power of the people is superior to both (judicial and legislative); and that where the will of the legislative … stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former”, however, if it contradicts his visions, it could be called “ill humors” and “conjunctures”.
And that was not only an isolated incident. The similar public outcry was provoked by Justice Anton Scalia opinion (luckily dissenting) in the Troy Davis case, that the Constitution does not prohibit executing innocent people:
“This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.”
Again, it is not an aberrant Scalia’s gaffe. No less a public opinion stirring phrase that the Constitution is a dead document, could be, and have been, explained away many times by Justice Scalia, but it manifests exactly what Ancient Romans and Hindu feared the most – that the over-formalized Justice of Mitra will eventually loose its living force. Take a look on the latest photo of Supreme Court. What feelings do you experience looking at it? An admiration, respect, captivation and awe before the wisest and fairest men and women of the country, guarding our Liberties? Or a sensation similar to which you sometimes catch yourself on well costumed Halloween parties, when you wonder for a moment: “Could these zombies and vampires be real ones just using the occasion to roam freely between people?”.
This is why Roman Flamen and Hindu Brahmana were not allowed to touch or see the dead and they had to be married and have children. It was not the accident that the occasion when Julius Caesar and Mark Antony decided it’s time for a Dictator to save the dying Republic was the Lupercalia festival – the very festival which was devoted to giving the life force and fertility of the wild, primeval, other-side world to the formalized society. That decision gave the Roman Empire an extra half a millennia (or a millennia and a half, counting in the Byzantium) of a life-time. Just long enough to relay its legacy to Renaissance and then Enlightenment era Europe.
Montesquieu: The Spirit of the Laws (Cambridge Texts in the History of Political Thought)
Mitra-Varuna: An Essay on Two Indo-European Representations of Sovereignty
The Essential Federalist and Anti-Federalist Papers
Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands
Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903