America's Reign Of Judges

The Federalist is carrying another excerpt from Michael Anton's new book, The Stakes: America at the Point of No Return. This excerpt deals with the role of the Judicial Branch of government under our Constitution. Anton advances a fairly conventional argument in the article, but I highly recommend it:

America’s Reign Of Judges Has Left Us With An Unrecognizable Constitution

Judges who can find no support in law for the outcome they want resort to their own personal sense of morality to achieve their desired result.

We're all familiar with that narrative. Our wise founding fathers established a very limited judicial branch which has subsequently gotten totally out of control, due to the unprincipled Left:

According to the parchment, judges are supposed to rule on individual cases and — in extraordinary circumstances — may invalidate laws that clearly flout the plain text and meaning of the Constitution. This is not what our judges actually do. They profess themselves loyal to the Constitution, in part as a diversionary tactic but also in part out of genuine sincerity. The problem with their sincerity is that their loyalty is not to the actual Constitution but to a rival constitution of the left’s own devising. That constitution is not written in the same manner as the formal Constitution, but neither is it completely unwritten. Its tenets are explained in various books and journal articles, in certain laws, and in administrative rules.

Clearly there's plenty of truth in that summary, at least as a sort of phenomenological description of where we find ourselves. What I'd like to suggest here is that this is not so much a perversion of the constitutional regime as it was originally intended, but rather the logical result of that constitutional regime--as originally intended. In other words, our current crisis with the Judicial Branch is a fairly logical extension of what the founders had in mind. If you don't like what you see, then maybe you should consider whether our constitutional order is flawed.


The first step in coming to grips with this approach is to reconceive the Constitutional Convention and see it as the first American coup. It was in essence a coup against the government that had been established by the Articles of Confederation. The Federalists--those who believed that the young United States badly needed an entirely new form of government featuring a strong central government with a strong executive--pulled a switcheroo:

On January 21, 1786, the Virginia Legislature, following James Madison's recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce interstate conflict. At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia in May 1787 to discuss ways to improve the Articles of Confederation in a "Grand Convention." Although the states' representatives to the Constitutional Convention in Philadelphia were only authorized to amend the Articles, the representatives held secret, closed-door sessions and wrote a new constitution.

Whether or not the Federalists were right isn't the point. The point is that if they had openly proclaimed their goal--to establish a federal republic with a strong central government headed by a general, George Washington--there never would have been a Constitutional Convention, and probably no United States as we know, or think we know, it. It was a closely run affair, largely conducted in secret, and taking advantage of the fact that many prominent American leaders weren't in attendance. In particular, the leading anti-Federalist, Thomas Jefferson, was abroad:

Several prominent Founders are notable for not participating in the Constitutional Convention. Thomas Jefferson was abroad, serving as the minister to France. John Adams was in Britain, serving as minister to that country, but he wrote home to encourage the delegates. Patrick Henry refused to participate because he "smelt a rat in Philadelphia, tending toward the monarchy." Also absent were John Hancock and Samuel Adams. Many of the states' older and more experienced leaders may have simply been too busy with the local affairs of their states to attend the convention, which had originally been planned to strengthen the existing Articles of Confederation, not to write a constitution for a completely new national government.

In order to ensure that this new form of government both got off the ground and progressed along the intended lines--in other words, to thwart the anti-Federalists if they tried to change things--the SCOTUS was set up and packed with strong Federalists, led by John Marshall. Marshall guided the young United States along strong Federalist lines until 1835.

In other words, the purpose of the SCOTUS was to preserve the interests of the ruling oligarchy--what we currently refer to as The Establishment--to make sure that the law reflected their view of how things should be.

I would argue that not much has changed, in structural terms. What has changed is what we could call the worldview or the civic religion of The Establishment. What remains largely the same is that the SCOTUS in its decisions largely reflects the interests and worldview of the The Establishment. I speak here of the Big Picture. The famous Switch In Time That Saved Nine is a good example. The Warren Court and Kennedy-O'Connor (set up by Ronald Reagan) is another example. John Roberts maneuvers continues the tradition of the SCOTUS enshrining in constitutional law the views of The Established ruling elites. There has been some resistance, but largely futile in the long run.

The hope that by appointing strict constructionist or originalist judges we will be able to turn things around and return to constitutional government is probably doomed to failure. I'm not suggesting that the attempt should not be made, only that the SCOTUS will likely not be the way to MAGA. I offer this reflection, too, to explain the rage that The Establishment feels toward President Trump. The problem facing the nation as a whole is how to force The Establishment to fall in line with the wishes of the subject population. That's a large part of what this election is about.