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 Researching historical documents, to define conflicting terms, was important because it allowed an understanding of how the principles these terms represent relate to the United States Supreme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.