Jacquerie, this was foreseen by "Brutus," in Essay XI (1788). Brutus, an anonymous Anti-Federalist, was concerned about the federal judicial power being proposed in the not-yet-ratified Constitution, worrying about its impact on State executive, legislative and judicial authorities. It seems Brutus was amazingly prophetic:
This article [III] vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law.These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the construction as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use.... Where words are dubious, they will be explained by the context....The enormities perpetrated by SCOTUS last week appear to fully justify Brutus' worries.
The judicial power will operate to affect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution:I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted....
Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable that the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.
...Because they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land....
When the courts will have [the British] precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorized to construe its meaning, and are not under any control?
This power in the judicial, will enable them to mold the government, into almost any shape they please.... (The U.S. Constitution: A Reader, Hillsdale College Press, 2012, p. 374377). Emphasis added.
Thank you so very much, Jacquerie, for your outstanding essay/post.
Very interesting read....and apparent we have seen this result now with Scotus and this administration as well.
If last week was predicted by Brutus, why did it take 226 years?