Sunday Excerpt from The Hidden History of the Supreme Court and the Betrayal of America

How the Supreme Court made itself the most powerful branch of government

Today I’m starting a new Sunday feature for the Hartmann Report. Every week I’ll publish an excerpt from one of my books, trying to pick ones that are particularly relevant to the issues of the day. The entire excerpt will be available to our paid subscribers, who can also comment on it. Our free subscribers will get at least the first third and optimally the first half of the excerpt.

Today’s excerpt is from The Hidden History of the Supreme Court and the Betrayal of America.

Part One: The Hidden History of Judicial Review

To understand the Supreme Court, one must understand the zeitgeist of the Founding Fathers’ generation and the philosophical history that led the founders and framers to create the Court itself.

Part 1 of this book looks at the founders’ intents and concerns—and how quickly the Court seized the power of judicial review to become a nearly despotic branch of government. The conclusion of part 1 explores how one man sparked a right-wing movement to seize control of the American government—including the outsized power of the Supreme Court.

The Founders’ Vision

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

—James Madison

In May 1787, a group of men in Philadelphia began to gather to debate and discuss what would become the template for the new United States of America: a new constitution. The youngest was New Jersey’s 26-year-old Jonathan Dayton (although James Madison was in his 30s, as were several other delegates), and the oldest was Pennsylvania’s Ben Franklin, who at 81 was so infirm that he had to be carried to and from the meetings.

Five men who were not in the room influenced the convention tremendously. Thomas Jefferson was stationed in Paris as the US envoy to France; John Adams was in London as our envoy to the UK. But even more important, Thomas Hobbes was 108 years dead, John Locke had been dead for 83 years, and Baron de Montesquieu had been dead for 32 years.

Thomas Hobbes tutored King Charles II and wrote Leviathan, which triggered the earliest stages of the Enlightenment, and also the big split away from monarchy and toward liberal democracy.

Hobbes’s ideas, with their faith in hierarchy and patriarchy, also formed a basis for today’s conservative movement. He believed that the essential nature of humans was evil (because, the Bible tells us, we’re all “born of woman”) and that man’s “original state” was a life of continual warfare and fear: “During the time men live without a common power to keep them all in awe . . . [they have no] arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.”

The only escape from our brutish and fearful existence in the state of nature, according to Hobbes, was under the iron-fisted institutions of church or state.

This is still the primary conservative narrative: without the restraining force of church or state, human life will devolve into chaos. A strong father figure, the story goes, is necessary, both in the form of leaders and rulers, and in the form of a tutelary (to use Alexis de Tocqueville’s word) state.

This view also led to the formation of the Supreme Court.

The Glue That Binds Us Together

Two generations after Hobbes, in the 1600s, King James II’s tutor, John Locke, saw things differently. He saw balance and democracy in nature and believed that humans could live in the then-modern world without submitting to some “dear leader.” Instead, he wrote that humans could live “in society.” He described it as the collection, both biological and voluntary, of people living in proximity and united for a common goal with a shared philosophy of social organization.

Locke’s Two Treatises of Government tore the “divine right” argument1 for ruling to pieces in 1690, making Locke famous and vaulting him to the front of the philosophers who were arguing for something more egalitarian to replace royalty.

His Second Treatise laid out the basis of democracy, as he saw it, and set the stage for today’s modern liberal democracies and the overall arc of the US Constitution.

Locke argued against the king’s supreme power over person and property, declaring, “Man being born, as has been proved, with a title to perfect freedom . . . hath by nature a power . . . to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men.”

Nearly a century later, Locke’s language informed Thomas Jefferson’s drafting of the Declaration of Independence. Because Locke conceived of law as being above any individual (such as a king), his argument called for a court system.

Another towering figure who influenced the creation of the Supreme Court was Charles-Louis de Secondat, aka the Baron de La Brède et de Montesquieu. Long gone but still well remembered, he was simply referred to by the founders and framers as Montesquieu.

Montesquieu argued in his 1748 The Spirit of Laws that egalitarian, democratic societies could work,2 and Jefferson wholly embraced Montesquieu’s ideas about the separation of powers within a government.

One could argue that Montesquieu was the godfather of the Supreme Court.

A Bold Experiment

Delegates also considered the form of democratic government held by the Iroquois Confederacy, as evinced by Ben Franklin, who wrote to his partner in the publishing business in New York, James Parker:

It would be a very strange Thing, if six Nations of Ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner, as that it has subsisted Ages, and appears indissoluble; and yet that a like Union should be impracticable for ten or a Dozen English Colonies, to whom it is more necessary, and must be more advantageous; and who cannot be supposed to want an equal Understanding of their Interests.3

The Iroquois had a court system that, in some ways, also inspired our Supreme Court.

Jefferson knew the Indians of Virginia well; as a young boy and early teen, he had traveled from remote tribe to tribe with his father, who spoke several of their languages, while his father was mapping the state. In his 1785 Notes on Virginia, Jefferson vigorously defended the Iroquois, and the Native Americans in general, against those Hobbesians who argued that they were uncivilized brutes.

Jefferson dismissed the racist rhetoric of the day, explaining, “In short, this [uncivilized] picture is not applicable to any nation of Indians I have ever known or heard of in North America.” Favoring history over racist myths, Franklin and Jefferson each looked to aspects of the Iroquois Confederacy to inform our own Constitution.

At the time, most of the contemporary “civilized” world still operated with the assumption of the divine rights of kings: the idea of private ownership of property as a normal thing for white working men was only about a century old (and wouldn’t appear for women until the 20th century).

After the failure of the Articles of Confederation to hold the nation together, the framers knew that there were lessons to be learned from scholarly Western sources, such as the ancient Greeks and Romans, but also from more novel sources, including the Iroquois elders they invited in for the opening days of the Convention.

These men were embarking on a bold experiment.

Debating the Supreme Court

From the founding of our republic in 1789 until 1803, the Supreme Court was only the final court of appeals. After all, the buck had to stop somewhere.

In 1788, when James Madison and Alexander Hamilton published a long series of newspaper articles promoting to the American people the idea that they should ratify the Constitution (which happened in 1789), Hamilton took on the job of selling Article III, which created the court system, including the Supreme Court.

In that sales pitch, Hamilton, on May 28, 1788, wrote in a newspaper article we today call the Federalist, no. 78, that the courts, including the Supreme Court, were the weakest of the three branches created by the Constitution.

“[T]he judiciary is beyond comparison the weakest of the three departments of power,” he wrote, adding in the same sentence that “it can never attack with success either of the other two [branches].”

He even footnoted that sentence with a quote from the famous French judge Montesquieu, who had first clearly articulated the idea of a separation of powers between governmental branches as a check and balance. Hamilton’s footnote read, “The celebrated Montesquieu, speaking of them, says: ‘Of the three powers above mentioned, the judiciary is next to nothing.’”

He explained why the Court’s judges had lifetime appointments and the judiciary had its own section of the Constitution, writing in the Federalist, no. 78, “[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

The lifetime appointments and Montesquieu’s “separation of powers” would insulate the Court from being “overpowered, awed, or influenced” by the president or Congress.

But some Americans (and many of the newspapers of the day) weren’t convinced; the idea of lifetime appointments and being a branch of government independent from the other two sounded too much like the European monarchies that the colonists had just fought a revolutionary war against.

“What would prevent the Supreme Court from rising up and taking over the country?” they asked. “You’re concentrating too much power in one branch!” others essentially said.

So, a month later, in June 1788, Hamilton published what is now known as the Federalist, no. 81, answering directly their objections, again arguing that the Supreme Court couldn’t make laws and couldn’t strike down laws.