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On September 3rd, the McConnell Scholars gathered for the first event of the Law and Public Policy series. Dr. Gary Gregg led a seminar which investigated the founding debates surrounding the creation of the American judicial system. Of the three branches of government in the United States, the judicial branch received the least attention during the Constitutional Convention of 1787. The resulting Article III provides a vague outline for what has become a large and complex legal system. To better understand the roots of this system, the scholars cast a critical eye upon the arguments of the Federalists and Anti-Federalists.
The Anti-Federalists feared the power of independent judges with lifetime appointments. They argued that the legislative body ought to maintain the ability to review the decisions of the Supreme Court. This system of review reflected the authority of the House of Lords which held the power to review the rulings of the British judiciary. The Anti-Federalists proclaimed that with each decision this court tended to subvert the governmental authority of the individual states. As stated in the Anti-Federalist Papers, “Every body of men invested with office are tenacious of power.” This interpretation of the judicial branch forced the scholars to confront the continual expansion of the federal government from the perspective of the founding generation.
The Federalists countered the argument of judicial tyranny by detailing the practicality and safety of independent judgeships. They held that lifetime appointments allowed for the necessary time to study the law and Constitution. In their view, few men qualified to interpret the people’s document, and the idea of legislative review would corrupt this interpretation with the prevailing politics of the age. Alexander Hamilton in Federalist No. 78 asserted that the judicial embodied the weakest branch of government, “. . . the judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” For the scholars, this portrayal of the judicial system resounded with familiarity. However, the review of the Anti-Federalist arguments brought this interpretation’s assumed validity into question.
This seminar compelled the McConnell Scholars to travel alternate avenues of thought concerning the role of the American judiciary. The students wrestled with the strengths and weaknesses of both arguments in this debate. History appears to have proven neither side wholly right or wholly wrong. However, the continued struggle between these conflicting interpretations sparked a renewed inquiry into a system which most Americans accept without hesitation.