unintended consequences.

Whenever government tries to fix something, it usually just makes things worse.  That is pretty much the case for the War on Poverty, the War on Drugs, Health Care, the Middle East, Afghanistan, and so on.  When will we learn?  But I was doing some research on an essay that I had to turn in for my Civil Liberties class.  The class started with the Courts, in particular the Supreme Court, and how it has evolved over the 230 years of the government's existence.

I found an article which will have a link at the bottom of my essay, regarding why the Court went so heavy on Judicial Review in the 20th Century.  It isn't a surprise to me, as I have long argued against this abomination to the Supreme Court.  Except now here is a peer reviewed article explaining the Court's attempt to make up a shortfall created by one of the capstone amendments of the early progressive era.  If you know me, you know what it is.

The Seventeenth Amendment.

For those that don't know, the Seventeenth Amendment ended the States' voice in Washington.  It created a Super House of Representatives, impervious to the winds of immediate change due to its six year terms. So here is the essay.  Remember, the length was limited, and so I tried to compact as much information as possible.  Hopefully the flow is okay.

            The question regarding whether the Supreme Court wields too much power on the surface is too easy.  Yes, it does.  It has become an unelected legislature that has lifetime tenure.  Confirmation hearings have gone from questions of qualification to where a jurist stands on certain positions.  Judicial decisions have evolved from review to rulings, as if a panel of monarchs or deity.  How did that happen?

            It is obvious that when the Constitution was ratified that Judicial review was intended to be a part of the checks and balances built in.  Were it not so, there would not be an exception included in Article III Section 2 (Madison, 1787).  Justice Marshall established Judicial Review as a check to both the Congress and the Executive in Marbury v Madison (1803).  Justice Marshall was very wise, as he never used Judicial Review again during his tenure (Epstein & Walker, 2019). 

            One of the most underappreciated facets of the Constitution was the structure of the legislative branch.  Its placement as Article I highlights that importance, and the details in each House were the source of considerable argument, or rather discussion.  Why is this relevant to the question of the power of the Supreme Court? 

            There was considerable discussion regarding Article I, and the structure of the Congress.  A House based on population was created but to address the concerns of smaller states, a second House, where each State had equal representation was proposed, and ultimately accepted.  Further, to assuage the concerns of those worried of conveying  too much power to the central government, the selection of the members of this House would be by the various state legislatures, creating a link, or better said, perhaps, a State’s representative to the United States government.  That was what was decided on and ratified into law.  It was this federalism that was so key to the Supreme Court’s deference to Congress during the first one hundred years of this nation. 

            Because of this federalist set up, bills that passed both Houses of Congress were not frequently ruled upon by the Supreme Court, as the Court felt that the States’ representatives, the Senators, had their input to the bill, and any conflict that there may have been between a State or States and the federal government was moot because of that.  An example of that was the establishment of the judiciary through the Judiciary Act of 1789.  This act originated in the Senate and filled in the federal judiciary so fairly to the states that noted Anti Federalist Senator Richard Henry Lee of VA told his friend Patrick Henry “So far as this has gone, I am satisfied to see a spirit prevailing that promises to send this system out free from those vexations and abuses that might have been warranted by the terms of the constitution."(Rossum, 1999).  The court rarely acted as it wasn’t necessary.

            Things began to change with the enactment of the Seventeenth Amendment, which brought about the direct election of Senators by the populace.  In all the debates, there were only three that stood to counter it, a Democrat representative from New York, and two Senators.  They deserve to be mentioned, even if I go long.  They were Rep. Franklin Bartlett, and Senators George Hoar (R-MA) and Elihu Root (R-NY).  By eliminating the States’ voice in Washington, the check on the House of Representatives regarding what could and could not be done and its impact on the states was left to the judiciary, which was ill-equipped to manage it (Rossum, 1999).

            Laws evolved into being more intrusive and increased in number.  In the author Theodore J Lowi’s terms, post Seventeenth Amendment legislation “was more abstract, novel, general, prescriptive”, compared to pre Seventeenth legislation described as “more concrete, specific, traditional, rule-bound, and proscriptive” (Rossum, 1999).  Because of these laws, the court began to act on more cases, leading to the modern era today.

            The first case Hammer v. Dagenhart, 247 U.S. 251 (1918), dealt with the Federal Child Labor Act of 1916.  It employed a dual federalism putting the states as sovereign on equal ground with the federal government.  This argument was rejected by the founders, was rejected by the originator or Judicial Review, Justice Marshall, and was only used previously by the Taney Court in the infamous Dred Scott Case, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 

            Numerous cases followed, using this dual federalism argument. Another argument used by the court to try to stem the tide of federal law was a narrow interpretation of the Commerce Clause.  The cases were decided in ways that were contrary to the intent of the founders, and the justices found themselves essentially rewriting the tenth amendment and the tax and commerce clause, why?  Because they felt a need to protect the federalism that was no longer in place.  None of those rulings acknowledged the breakdown of the system caused by the Seventeenth Amendment.

            The courts have, unwittingly perhaps, continued along that path of filling in that gap between a carefully crafted government designed to limit itself by competing sovereignty, with a court weighing in usually only on matters of states, and  the government we have today which has grown exponentially without the safeguards built in.  Is there a solution?  I don’t think so.  Once the box is opened, it can’t be closed.

References

Epstein, L., & Walker, T. G. (2019). Rights, liberties, and justice; Constitutional law for a changing America (Tenth). Thousand Oaks, CA: CQ Press.

Madison, J. (1787). US Constitution. United States Constitution. Philadelphia, PA.

Rossum, R. (1999). ARTICLE:The irony of constitutional democracy: Federalism, the Supreme Court, and the Seventeenth Amendment,. San Diego Law Review, 36(3), 671–741. Retrieved from https://advance-lexis-com.ezproxy.fhsu.edu/document/?pdmfid=1516831&crid=b1f02c28-30d2-4f20-93c1-e0c052632d19&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A3YPK-4H40-00CW-F0C8-00000-00&pddocid=urn%3AcontentItem%3A3YPK-4H40-00CW-F0C8-00000-00&pdcontentcomponentid=140726&pdteaserkey=sr0&pditab=allpods&ecomp=sp79k&earg=sr0&prid=cb36b01b-0bb3-4b8e-9160-df15b7fe61f5