Discovering the Founders' Attitudes Toward the United States Supreme Court
Abstract
This research was meant to discover whether, amid accusations they have become the super branch, the judiciary envisioned by the Founders is mirrored today. Reviewing constitutional origins led to the discovery that the Founders acknowledged federalism (divided government) and popular sovereignty as fundamental principles, the judiciary was one of three branches established to protect these principles, and Founders insisted on a written constitution. Federalists and anti-Federalists differed widely on how to implement these principles but all held them to be foundational.
For over two centuries Americans have debated the proper interpretation of our compact. Questions persist regarding whether federalism consists of co-sovereign central and states governments or of sovereign central/weak subordinate governments. To discover the Founder’s attitudes writings of three periods were examined: 1) Marshall’s Marbury v. Madison opinion; 2) debates surrounding opinions in Martin v. Hunter’s Lessee, McCulloch v. Maryland, and Cohens v. Virginia; and 3) Andrew Jackson’s 1832 bank veto. Researching historical documents, to define conflicting terms, was important because it allowed an understanding of how the principles these terms represent relate to the United States Supreme Court (USSC), and was essential for a knowledgeable, impartial comparison.
Major findings were that USSC rulings have largely defined the debate about The Constitution; that not even the extreme Federalist Alexander Hamilton believed the USSC was the sole and final arbiter of constitutional questions; and that today’s judiciary fulfills the Founders’ worst fears.
In conclusion, at recent confirmation hearings stare decisis (precedent) was touted by some elected officials as the guiding principal of judicial decisions. In most instances, they referred only to recent precedents set over the past 50-60 years, while ignoring centuries-old precedents established at our nation’s founding. Implications are that unchecked, the judiciary will continue to discover “rights” lurking in the “shadows” of our Constitution. The judiciary is not solely to blame for this usurpation of We the People’s sovereignty. Through ignorance and indifference an unelected judiciary has been allowed to dominate our constitutional system. If the court has become the Super Branch, We the People are largely to blame. Education and involvement are a sure cure.
Subject
FoundersThomas Jefferson
Alexander Hamilton
Supreme Court
Andrew Jackson
Constitution
James Madison
John Marshall
Spencer Roane
Marbury v. Madison
McCulloch v. Maryland
Martin v. Hunter's Lessee
Bank Veto of 1832
federalism
sovereignty
judicial supremacy
judicial activism
stare decisis
natural rights
Bill of Rights
Cohens v. Virginia
George Washington
Kelo v. City of New London
Chief Justice John Roberts
Justice Samuel Alito
Justice Clarence Thomas
Justice Sandra Day O'Connor
Constitutional Convention
Judiciary Act
Virginia Court of Appeals
Declaration of Independence
Articles of Confederation
Patrick Henry
Revolutionary War
Federalist Papers
ratification
House of Representatives
Republicans
Congress
Benjamin Franklin
John Adams
Second Bank of the United States
Fairfax’s Devisee v. Hunter’s Lessee
President
Senators
Article 25
Amphictyon
Brutus I
necessary and proper clause
Margaret Horsnell
Secretary of the Treasury
Secretary of State
Old Hickory
James Monroe
First Bank of the United States
Nicholas Biddle
Daniel Webster
Henry Clay
Abigail Adams
executive
Roger Brooke Taney
Dred Scott
Commonwealth v. Kneeland
Samuel Adams
Robert H. Bork
England
King George
John Locke
Magna Carta
Oliver Ellsworth
Article III
Article II
Article IV
Article V
First Congress
Super Branch
Charles Haines
Christopher Columbus Langdell
Harvard Law School
Robert Yates
Anti-Federalists Papers
Sources Consulted
Primary Sources
Secondary Sources
Citation
Avila, Teresia Coleman (2006). Discovering the Founders' Attitudes Toward the United States Supreme Court. Available electronically from https : / /hdl .handle .net /1969 .1 /4495.
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