Brutus XV

Image: Bust of Marcus Junius Brutus. (Antwerp: Rijksmuseum, 1638) Rijksmuseum.
The Judiciary
Why did Brutus claim that errors of judgment were not included in “high crimes and misdemeanors”? If he was correct, how did this strengthen judicial power? Why did Brutus think that the power of the Supreme Court would exceed the legislative power?
Compare Brutus’ concerns about constitutional interpretation to Justice Brennan’s defense of living constitutionalism. How would Brutus evaluate Brennan’s treatment of the Constitution?

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Brutus, most likely Robert Yates (1738–1801) of New York, was a leading Anti-Federalist. He wrote sixteen essays criticizing the Constitution and the stronger central government it created. In several of them, culminating in the fifteenth, Brutus attacked the Supreme Court outlined in Article III of the Constitution, claiming that the Court and its justices “would be exalted above all other power in the government, and subject to no control.” He gave three reasons why he believed this would occur.

First, there was no branch of government in the Constitution with the power to correct the decisions of the Court. Judicial supremacy would thus be inevitable, even though the Constitution did not make the Court the supreme constitutional expositor. Here, Brutus did not mention the power of the people to amend the Constitution, which is commonly cited as a check on the courts. But the framers intentionally made this process difficult making Brutus’ neglect appropriate.

Second, Supreme Court justices are appointed for life and “hold their offices during good behavior.” Brutus believed “good behavior” was a very low bar. Judges can be grossly mistaken or “incompetent” to discharge their duties and still meet that standard. Combined with judicial supremacy, judicial errors would thus go uncorrected.

Third, the Court’s power to  determine the meaning of the Constitution would make it superior to Congress. This was by far Brutus’ most important objection. Perhaps anticipating contemporary disputes over whether judges should adapt the meaning of the Constitution to changing social circumstances or interpret it based on its original meaning, Brutus foresaw justices imposing their political preferences under the guise of interpretation. He warned that “men placed in this situation will generally soon feel themselves independent of heaven itself.”

Brutus also feared that the judicial branch would “ facilitate the abolition of the state governments.” While this concern was overwrought—the national government cannot function without the participation of the states—there is no doubt that the Supreme Court throughout its history and regardless of its ideological disposition has generally been inclined to favor the power of the national government over that of the states. Precedents, Brutus contended, which the people are largely unfamiliar with, would accumulate, allowing Congress to “pass one law after another, extending the general and abridging the state jurisdictions.” This does not sound dissimilar to the history of the Court’s twentieth-century commerce clause jurisprudence. For example, in U.S. v. Darby (1941) and Wickard v. Filburn (1942) the Supreme Court said that Congress could regulate noneconomic intrastate activity, even noncommercial activity, if it could claim that in the aggregate such activity had a “substantial effect” on interstate commerce.

In conclusion, Brutus contended that “construction of the Constitution” should be “left with the legislature.” Since a “constitution” is a “compact of a people with their rulers” the people must be able to remove those rulers if they break their compact. Since the Constitution lodges the power of construction “in the hands of men independent of the people”—the justices of the Supreme Court—the people cannot “remedy the evil” of constitutional usurpations.

—Joshua Dunn

Source: The Anti-Federalist Papers and the Constitutional Convention Debates: The Clashes and Compromises That Gave Birth to Our Government, ed. Ralph Ketcham (New York: Signet Classics, 2003), 322–328. Used by permission.

I said in my last number, that the Supreme Court under this Constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe, the courts of law are put upon the most prudent establishment, they are on a very different footing.

The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the House of Lords; and their power is by no means so extensive as that of the proposed Supreme Court of the Union. I believe they in no instance assume the authority to set aside an act of Parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjudging that they are inconsistent with the constitution—much less are they vested with the power of giving an equitable construction to the constitution.1

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this Constitution will control the legislature, for the Supreme Court are authorized in the last resort, to determine what is the extent of the powers of the Congress; they are to give the Constitution an explanation, and there is no power above them to set aside their judgment. The framers of this Constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behavior. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea of rendering the judges independent—which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries—they have made the judges independent, in the fullest sense of the word. There is no power above them to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark. Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear that the reasons in favor of this establishment of the judges in England, do by no means apply to this country. The great reason assigned why the judges in Britain ought to be commissioned during good behavior, is this, that they may be placed in a situation, not to be influenced by the Crown, to give such decisions, as would tend to increase its powers and prerogatives. While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the Crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr for the judges to determine contrary to the king’s will. They were absolutely dependent upon him both for their offices and livings. The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point in favor of liberty. When they obtained the appointment of the judges, during good behavior, they got from the Crown a concession which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge’s offices for good behavior lose a considerable part of their weight when applied to the state and condition of America. But much less can it be shown that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.

I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will show that there is no power above them that can control their decisions or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.

First. There is no power above them that can correct their errors or control their decisions. The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits. In this respect it differs from the courts in England, for there the House of Lords is the highest court, to whom appeals, in error,2 are carried from the highest of the courts of law.

Second. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity.

It is expressly declared by the Constitution “that they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”

The only clause in the Constitution which provides for the removal of the judges from office, is that which declares that “the president, vice president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.” By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show that the judges committed the error from wicked and corrupt motives.

Third. The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorized to decide upon the meaning of the Constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the Constitution, they cannot assume any of the rights annexed to the judicial, for this plain reason that the same authority which vested the legislature with their powers, vested the judicial with theirs—both are derived from the same source, both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial. The Supreme Court then have a right, independent of the legislature, to give a construction to the Constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws inconsistent with the sense the judges put upon the Constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the House of Lords, for error, but in cases where they give an explanation to the laws or constitution of the country, contrary to the sense of the Parliament, though the Parliament will not set aside the judgment of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme, and no law explanatory of the Constitution will be binding on them.

From the preceding remarks, which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.

I have, in the course of my observation on this Constitution, affirmed and endeavored to show that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national. In this opinion the opposers of the system have generally agreed, and this has been uniformly denied by its advocates in public. Some individuals, indeed, among them, will confess that it has this tendency, and scruple not to say, it is what they wish; and I will venture to predict, without the spirit of prophecy, that if it is adopted without amendments, or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan, will employ the same to persuade the people that it will be for their good to abolish the state governments as useless and burdensome.

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the Constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion. The people will be told that their state officers and state legislatures are a burden and expense without affording any solid advantage, for that all the laws passed by them might be equally well made by the general legislature. If to those who will be interested in the change be added those who will be under their influence, and such who will submit to almost any change of government, which they can be persuaded to believe will ease them of taxes, it is easy to see, the party who will favor the abolition of the state governments would be far from being inconsiderable. In this situation, the general legislature might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the Constitution has committed the power of explaining the Constitution. If the states remonstrated, the constitutional mode of deciding upon the validity of the law is with the supreme court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.

Had the construction of the Constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the Constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people choose at stated periods should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.

  1. 1. Brutus provided a lengthier explanation of this issue in his eleventh essay. The Supreme Court has the power under Article III to hear “all cases, in law and equity” arising under the Constitution. In England courts of equity were separate from common law courts and were empowered to set aside the rulings of common law courts if the strict application of the law led to an unjust result. Courts of equity were then given greater flexibility since they were authorized to set aside the law. Brutus was predicting that justices would apply principles of equity to constitutional cases, which are by definition legal cases. In short, justices would interpret the Constitution based on what they regarded as fair or just rather than what the text actually said.
  2. 2. An appeal of a verdict can be made only on the basis of a claim that a legal error occurred in a trial.
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