When the Founding Fathers opposed the Supreme Court

With the overturning of abortion rights in America, questions have turned to the court’s legitimacy and power — but this is not a new debate. It has haunted US politics for centuries.

The United States Supreme Court.
The United States Supreme Court. Credit: Chronicle / Alamy Stock Photo

In May last year, protestors descended upon the United States Supreme Court in the wake of the leaked draft decision in Dobbs v. Jackson Women’s Health Organisation, which pre-empted the court’s verdict in June to overturn Roe v. Wade. Among the many banners flying, one bore the legend ‘THE PEOPLE ARE SUPREME’. Other signs, reading ‘Abort the Court’ and ‘We Should Choose Our Own Destinies’, signalled the same demand, that the power to decide the most important questions in American political life should be held by the people.

These demands also expose a perennial American anxiety: that the American people are not truly self-governing, and that American democracy must ultimately submit itself to the edicts of a sovereign in judges’ black robes. This is not an anxiety unique to the present moment. Debates about the scope of the Supreme Court’s power, and of the threat to democracy posed by activist judges, have haunted American politics since its founding and have been articulated by both the left and right. Long before the court won its twentieth-century reputation as a bastion of progressive social values, it was most famous for excluding African Americans from citizenship in the 1857 decision Dred Scott v. Sanford and for opposing trade unions, limits on working hours, and child labour bans in the infamous ‘Lochner Era’ of the 1880s-1920s.

But through controversy and crisis, the court has remained and has secured for itself a place at the heart of American political life and an indispensable role in the constitutional architecture of the United States. It might be surprising, then, that its vast power of constitutional judicial review cannot be found in the constitution. Article III of the United States Constitution simply attributes to the court original jurisdiction over cases concerning ‘Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party’ and appellate jurisdiction as the final court of appeal in cases concerning a variety of issues, such as relationships with foreign nations and their citizens and disputes between citizens of different states. It does nothing to grant the court the right to regulate the acts of Congress or the president, or to judge legislation against the standards of the constitution and to nullify them as a result.

Doubts about the democratic legitimacy of a Supreme Court capable of overturning the decisions of elected politicians were voiced at the federal constitutional convention of 1787. As one delegate, John Dickinson, observed, if taken to its logical conclusion such a power would likely result in the court assuming the position of ‘lawgiver,’ whose right to overturn all legislation would make it, and not the people’s representatives, the supreme political power in the republic.

Another delegate, John Mercer of Virginia, echoed this scepticism about the creation of a powerful judiciary with the power of constitutional review, and, as the Records of the Federal Convention have it, ‘disapproved of the Doctrine that Judges as expositors of the Constitution should have authority to declare a law void’. Instead, Mercer argued, ‘laws ought to be well made, and then to be uncontroulable’.  Once the political process had run its course and the law decided, Mercer argued, it ought to exist beyond the scope of judicial power, unchanged unless returned to by future generations to debate anew.

Even after the convention, in a letter written in October 1788, James Madison, whose influence on forming the constitution was key, expressed grave reservations that the exercise of constitutional judicial review would ‘make […] the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper’.

Not all of the Founders agreed, however. We need only read Alexander Hamilton’s argument in his 1788 essay, Federalist No.78, to see otherwise. On the same day that Mercer expressed his reservations about judicial invalidation of laws, he was rebuked by Gouverneur Morris of New York, who declared it absurd to say ‘that the Judiciary […] should be bound to say that a direct violation of the Constitution was law’. But reading this debate challenges the idea that a court exercising strict and persistent oversight of democratically-made political decisions is part of America’s constitutional DNA, or that it was indisputably the Founding Fathers’ intention.

In fact, when the Founders first met to establish a new constitution for their deeply divided nation, many supported a mode of constitutional oversight radically different to that employed by the Supreme Court. When the Virginian delegation to the court, comprised among others by Madison and George Washington, presented their first draft plan for a new constitution to the Convention, it included only a weak judiciary. In place of a single Supreme Court, they proposed one or perhaps several ‘tribunals’ to deal with national legal issues, mainly revolving around disputes between the states, trials for piracy outside any state’s jurisdiction, federal tax collection, impeachments, and other issues involving ‘the national peace and harmony’.

This did not mean they excluded the possibility of a guardian of the constitution. Instead, they proposed the creation of a ‘Council of Revision,’ composed of the president and ‘a convenient number of the National Judiciary.’ It would be the task of this body to ‘examine every act of the National Legislature before it shall operate’, with a right to veto legislation, albeit subject to a legislative override. The same institution had already been in operation in New York since 1777, and variations on the plan were presented at the Federal Convention at least four times, although all were rejected and a veto attributed solely to the president.

Some modern scholars have seen this Council of Revision as merely a precursor to the modern presidential veto, limited by the inclusion of judges mainly due to anti-monarchist sentiment. Yet the Founders felt differently. As Madison would explain in a 1788 letter, ‘A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws’ (emphasis mine), and he directly contrasted it with the usurpation of proper legislative authority embodied by an overly powerful Supreme Court.

Critically, however, this was a constitutional control which met John Mercer’s stipulation that ‘laws ought to be well made, and then to be uncontroulable’. Legislation would not go unchecked, and indeed would be subject to judicial oversight, but once laws had been made only the democratic process could change them. Judges could not return to settled points of law and reopen old political wounds. This proposed Council of Revision, therefore, embodied a mode of constitutional oversight sometimes referred to as an ex ante constitutional control. A similar institution existed in France until 2010 in the form of the Conseil Constitutionel, whose members could strike down laws as unconstitutional, but only before they entered into force.

In the end, however, the proposal was abandoned by the Founders, (and abolished in New York in 1821), who left unspecified where the guardianship of the constitution lay. For some, including Morris during the Convention, and later George Washington and Thomas Jefferson, the answer was the presidency. For others, particularly Madison, it was in the system of checks and balances in which, as he put it, ‘ambition [is] made to counteract ambition,’ and the competing interests of institutions able to veto one another’s actions prevent any from overstepping its bounds. And for others still, including Hamilton, it was the Supreme Court. None, however, had an exclusive claim to the ‘correct’ view of the constitution.

Yet within a generation, the court had nonetheless arrogated to itself the power to adjudicate the constitutionality of federal laws and the actions of the federal government. In the ‘Marbury v. Madison’ decision of 1803, Chief Justice John Marshall observed ‘all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution, is void’. Therefore, he continued ‘It is emphatically the province and duty of the Judicial Department to say what the law is.’ This quote, an unambiguous claim to the very paramountcy abhorred by Madison, remains etched above the entrance of the court to this day.

Even so, this model remained anomalous globally. Before 1920, when the world’s first explicitly constitutional court was created in Austria, no European country had adopted an institution analogous with the US Supreme Court. Bodies on its rough model would not become a standard element of the architecture of Western democracy until after the Second World War, largely as attempts to constrain the excesses of mass politics widely held responsible for the rise of Nazi and Soviet totalitarianism.

Likewise, when the court stepped too far in the direction of judicial activism in the United States it was frequently the subject of intense controversy. Just 19 years after Marbury, Senator Richard Mentor Johnson introduced a constitutional amendment in the Senate that would strip the court of its final say over the constitutionality of legislative or executive actions and transfer the power to the Senate itself as a constitutional court of final appeal. Just over a century later, in 1937, it was only then-president Franklin Roosevelt’s threat to ‘pack the court’ — expanding it with up to 15 new justices —  that cowed its members into accepting the sweeping new economic policy measures of his New Deal, indispensable to ending the Depression.

As Americans turn again to the question of the court’s legitimacy, with many on the left denouncing the rise of a new ‘juristocracy,’ it’s worth remembering this history. For all its seeming inviolability today, the power the court has claimed for itself as the ultimate interpreter of the constitution is, at best, historically contested. Ironically, the constitution in fact grants Congress sweeping powers to alter the composition, size, and powers of the court. If it wishes to exercise those powers again, it could do worse than to look to the Founding Fathers for advice on how to maintain the constitution without submitting to judicial paramountcy.


Angus Brown