“There
is not a syllable in the plan [the Constitution] which directly empowers the
national courts to construe the laws according to the spirit of the
Constitution.” Alexander Hamilton, Federalist 81
During
the Constitutional Convention and state ratification conventions, the judiciary
was the least discussed branch of the national government. From a design
perspective, almost all of the debate and alarm seemed to have been focused on
the executive and the legislature. The simplest explanation is that the
judiciary was familiar and non-controversial. Hamilton wrote in Federalist 78, “[T]he judiciary, from the
nature of its functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity to annoy or
injure them.”
Every delegate knew what a judge did and understood their
role in the government, and their only concern was insuring their independence.
A few anticipated that judges might legislate from the bench, but most of the
delegates were more concerned about politicians putting undue pressure on judges.
The Framers solution to this threat was to give justices life tenure.
For
nearly one hundred and fifty years, the Supreme Court restricted itself to
evaluating laws based on what today would be called an originalist perspective.
The Commerce, General Welfare, and Necessary and Proper clauses and Bill of
Rights were interpreted on a generally narrow basis. The court took the
enumerated powers seriously, showed deference to state authority, and restricted
interference with contracts.
