At Law & Liberty, Aaron N. Coleman (University of the Cumberlands — History): Anti-Federalists and the Roots of Judicial Oligarchy. From the introduction:
[D]espite all the evidence to the contrary, conservatives continue to tout Hamilton’s assurances that, with the right people in place, the judiciary would prove to be the “least dangerous branch” because it had neither “force nor will,” while the absence of the sword and the purse were to render the Court powerless. History, however, has not been so sanguine to Hamilton’s assurances. What makes this all the more frustrating is how, rather than push back against these aberrations, conservative groups work within the progressive paradigm of judicial supremacy. They continually fail to get the decisions they want, and the supposedly “right person” fails time and again to live up to expectations (likely because every appointment is yet another elite from another ivy-league law school). All this is compounded by the guilt and shame that comes from effectively embracing the progressive elements that have so grotesquely misshapen the Constitution.
This bleak picture of our modern constitutionalism should not surprise anyone who has read the Anti-Federalists. Their warnings on the loss of self-governance and liberty through the Constitution’s general vices—consolidation and potential oligarchy—and the vices of the judiciary in particular, should appear to modern readers, those willing to listen at any rate, as prophetic and prescient.
And in conclusion:
After the Anti-Federalists lost the political debate in 1788, most did not withdraw from public life. They accepted the Constitution’s federal structure and worked tirelessly—and, to their opponents, obnoxiously—within the state and federal governments to preserve their local lives and check and curb its consolidationist and oligarchic tendencies. To put it another way, Anti-Federalists did not despair; they did not condemn the Constitution as illegitimate, nor did they advocate for new modes of jurisprudence which only exacerbate the problem of judicial supremacy. While the Anti-Federalist attitude persisted, consolidation and judicial oligarchy, while not successful in every instance, were held at bay. Only after the passing of that mentality, did their prognostications of the Constitution begin to come true.
In another recent essay on Law & Liberty, the picture heading the text shows a man holding a large cross and seemingly praying before the Supreme Court. The picture captures the beleaguered state of our constitutional order. The man sees himself as living in a national society that increasingly believes his religious beliefs are outmoded and dangerous, even as he and most of his neighbors attend church regularly; bereft of having his state governments deal with this issue; unknown to his Congressman or Senators; and, unable to move a cold and distant bureaucracy, his last remaining method of participation, and his last hope, was to beg for divine intervention upon five ivy-league educated, unelected, life-tenured lawyers. This is not how a healthy compound federal republic bound by the rule of law operates. It is high time for conservatives to accept that our long embrace of the Constitution’s vices—vices the Anti-Federalists warned about—has led to our celebrating a republic that remains one in name only; the reality is something vastly different.
Before we consign the Founder’s regime to memory and whispered longings, conservatives must first embrace—and actually listen to—those who best understood the Constitution’s vices. Conservatives must begin the arduous but necessary process of teaching what the Anti-Federalists knew: that free republicans do not live in a homogenized, consolidated nation. Instead, they respect the sovereignty of the individual state, actively participate in the exercise of its good government, practice the republican virtues of courage and vigilance, and maintain a healthy jealously over their rights. Once conservatives acknowledge that the Anti-Federalists were right about consolidation leading to oligarchy (in our case, oligarchy by judiciary), they can begin to understand how those same Anti-Federalists hold the key to ending their reign.
Posted at 6:34 AM