Brutus v. Publius: The Fight Over the Judiciary
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Brutus v. Publius: The Fight Over the Judiciary

November 11, 2019

By 1787, a crisis seemed on the horizon. The existing government of the Union was not
working well. The Articles of Confederation was an alliance
between pre-existing states. The Articles relied on one state, one vote,
one branch of government, which meant it wasn’t really a government. Both the advocates of the Constitution and
their opponents were dissatisfied with the Articles. The difference between them was the opponents
of the new Constitution thought the Articles could cure themselves; they could pass a series
of amendments that would empower the national government. And the Federalists concluded that what we
had to do was start over. “Instead of confining themselves to the powers
with which they were entrusted, they pronounced all amendments to the Articles of Confederation
wholly impracticable; and with a spirit of amity and concession truly remarkable, proceeded
to form a government entirely new and totally different in its principles and its organization.” Brutus VIII. “The evils we experience do not proceed from
minute or partial imperfections, but from fundamental errors in the structure of the
building, which cannot be amended otherwise than by an alteration in the first principles
and main pillars of the fabric.” Federalist XV. The naming of Federalists was meant to be
those people who wanted a closer union, a more perfect union. The Antifederalists were called Antifederalists
by the Federalists because they were anti-federal men. They wanted a looser construction, although
in terms of principle, they were more federal in the old-fashioned sense of decentralized
government and limited central government. The Antifederalists opposed the Constitution
because they thought it wouldn’t guarantee republican government. It would degenerate into a form of aristocracy
or despotism because there was too much power in it. Publius undertook a massive effort to persuade
them otherwise, which helped to succeed in winning the fights against the critics of the
Constitution. “After an unequivocal experience of the inefficacy
of the subsisting federal government, you are called upon to deliberate on a new Constitution
for the United States of America. The subject speaks its own importance.” Federalist I. The most famous, and certainly the longest
and most elaborate, defense of the new Constitution was written by Alexander Hamilton and James
Madison and John Jay under the pseudonym of Publius. There are no three Antifederalists who wrote
under one name, Brutus. Brutus wrote between October 1787 and April
1788, almost paralleling the writing of the Federalists. Brutus is the one who kills Julius Caesar,
the authoritarian threat, and saves the Roman Republic. The Publius they had in mind was one of the
co-founders of the Roman Republic and was, in a way, an early savior of the Republic
who democratized the early Roman Republic but also stabilized it. For Publius, the Articles of Confederation
put the Revolution in danger. For people like Brutus, who were more cautious,
that the Revolution represented the real battle and that we didn’t need another battle, another
huge structural change. The main battle had been already fought and
won. “In unfolding the defects of the existing
Confederation, the utility and necessity of a federal judicature have been clearly pointed
out.” Federalist LXXVIII. Brutus had a very keen anticipation of problems
lurking in the Supreme Court. “It is to be observed that the Supreme Court
has the power, in the last resort, to determine all questions that may arise in the course
of legal discussion on the meaning and construction of the Constitution. This power they will hold under the Constitution
and independent of the legislature.” Brutus XII. The key to democratic-republican government
for Brutus is dependence on the people, and responsibility to the people. The judiciary becomes difficult for Brutus
because it is not directly the result of the consent of the people. Publius’s famous defense of judicial review
rests upon the necessity, that if this to be, as he says in Federalist 78, “a limited
Constitution” you have to a way to enforce the limits on what Congress, or the President,
can do. “The interpretation of the laws is the proper
and peculiar province of the Courts. A constitution is, in fact, and must be regarded
by the judges, as a fundamental law. It, therefore, belongs to them to ascertain
its meaning.” Federalist 78. When the legislative branch violates the-
the manifest tenor, the clear meaning, you need- you need a judiciary; and it’s some
kind of independent body, not tied up with the political mechanism, in order to restrain
a legislative branch when it has gone off the rails. “No errors they may commit can be corrected
by any power above them, if any such power there be, nor can they be removed from office
for making ever so many erroneous adjudications.” Brutus 11. I think Brutus’s point there is that there’s
no inherent mechanism within the Constitution to restrain the Judiciary to the manifest
tenor doctrine. And Hamilton’s response would be, “Congress
will never let it happen.” There are many ways in which the elected branches
of the government can exert authority over the unelected one, simply in the- the power
of appointment itself combined with the power of removal through impeachment, means that
the notion of a Court that’s completely out of control and indifferent to majority opinion
seem to them very implausible. “They have made the judges independent, in
the fullest sense of the word. They are independent of the people, of the
legislature, and of every power under heaven. Men placed in a situation will generally soon
feel themselves independent of heaven itself.” Brutus 15. They’re supposed to enforce the highest law,
the law of laws, namely, the Constitution. It does presuppose a certain ethic among the
judges, namely that they will respect their role as judges. They’re not supposed to make law. For Publius to say that Congress will never
let it happen means that Congress would adhere to the dignity of being a member of Congress. For Publius’s system to work, it requires that
ambition counteract ambition. “In framing a government which is to be administered
by men over men, the great difficulty lies in this: You must first enable the government
to control the governed; and in the next place, oblige it to control itself.” Federalist 51. The very exercise of judicial power presupposes
political judgments about what is right and wrong and what proper structure of a government
could be. They’re partisans of the Constitution, not
partisans of any particular political party. The only thing that got the
Constitution over the hump in regard the Judiciary, was the promise of a Bill of
Rights. There’s something wrong. That’s Brutus’ whole theme. With each branch, there’s something wrong. So in the end, we need a Bill of Rights. We don’t need classical virtue. We need a Bill of Rights to remind ourselves
that, uh, we the people tell the government what to do, not the government tell us what
to do. Unfortunately, one of the reasons that Brutus,
in fact, has turned out to be, in many ways, correct is because the Congress itself defers
to the judiciary; that somehow we live under the Constitution, but the Constitution is
what the judiciary says it is. Congress believes that. Many presidents believe that and the judges
certainly believe that. And that was Brutus’s prediction. “The opinions of the Supreme Court, whatever
they may be, will have the force of law; because there is no power provided in the Constitution
that can correct their errors, or control their adjudications.” Brutus 11. The Court is not so strong when it is being
confronted by a popular branch of government that has the people behind it, which I think
confirms Publius’s basic argument that in that kind of confrontation, ultimately, the democratic
branches win over the Court. The problem in recent history has been that
the democratic branches approve of the Court’s activism, more often than they don’t. And Brutus’s prediction is one branch will
become dominant. You can’t keep this equilibrium up. It has a potentiality for one branch to take
over the main role of the other two branches. “But when this power is lodged in the hands
of men, independent of the people and of their representatives, and who are not constitutionally
accountable for their opinions, no way is left to control them but with a high hand
and an outstretched arm.” Brutus 15. It’s the rejection of Publius’s Constitution
that has made Brutus’s prediction seem true, under contemporary circumstances. I think what the Federalists attempted to
do was to make the judiciary independent of the regular political process of Congress
and the President, without making the judiciary independent of the people themselves, or the
system itself. That is, can you distinguish between politics
and judging? That’s very, very difficult to do. “From the courts of justice, the general liberty
of the people can never be endangered from that quarter; I mean so long as the judiciary
remains truly distinct from both the Legislature and the Executive. For I agree that ‘there is no liberty, if
the power of judging be not separated from the legislative and executive powers.'” Federalist 78.

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  1. The 'Anti-Frederalists were right. Just look at Congress, the Judiciary and the Executive of today. They are the Elite, far removed and out of touch with the people – An Aristocracy.

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