Federalism and the Judiciary: in the Shadow of Brutus

This essay was written originally for a class through the School of Civic and Economic Thought and Leadership at Arizona State University, for the class “Great Debates of American Politics and Economics” taught by Professor Zachary German.

In this essay, the primary thesis of secularization as the central catalyst for the expanded role of the courts in American government is bolstered by the introduction of the concept of the plane of statecraft. Fully fleshing out this concept will require further inquiry. This is part one

NOTE: The secularization of society serves as a catalyst for the expanded role of the courts in recent times (mid-century to the present) in this conception, not vice versa. This essay does not attempt to discuss the expansion of Judicial powers prior to this time period nor prescribe secularization as the sole cause of the trend towards abuse of power in the legal system.

          To seek perfection in government is to seek the whole in part, infinity within bounds, transcendence among men. The aim of the Founding Fathers was never to form a perfect republic. It was rather to create a system that perpetually pushed itself to be ever more perfect, tempering the passions of men and harnessing man’s boundless energy for the good of all. In the past century, the role of the American judiciary has expanded unreasonably beyond its constitutional bounds. The Hamiltonian view of the judicial branch as the weakest moving part of government has given way to the antifederalist nightmare of a branch without much constraint and with emboldened aims. The independence of the judiciary, coupled with Congress after Congress and President after President ceding their properly designated authorities to unelected lawyers, has paved the way for the eventual demise of the American experiment. Exceptional by virtue of its tripartite structure, distinct division of powers, and its commitment to pitting the interests of men against one another, the greatest system of federal organization in human history now risks sacrificing its integrity at the altar of the momentary passions of men. A limited government by structure, the American system has begun to devolve, concentrating power in what was created to be the least capable branch and asserting its supremacy over all other parts. The devolution of American principles and subsequent concentration of power is not the function of the structure established under the Constitution; it has been the result of political figures subverting institutions for the sake of temporary gain, judges seeking to expand their power for both altruistic and destructive ends, and the sweeping secularization of society.

          Brutus and the antifederalists had it wrong. That does not mean that their predictions are not to be taken seriously, nor that their warnings should go unheeded. Hamilton’s incessant focus on the Judiciary as a purely reactive branch, and thus possessing “neither force nor will, but merely judgement”1, does not diminish the very prescient concern of the opponents of the  Constitution who point out that having the ability “to determine all questions that may arise upon the meaning of the constitution in law”2 is quite powerful when united with the Judiciary’s role as the final arbiter of disputes. While judges can be removed by Congress at times in which they do not display “good behavior”3, the process of impeachment and removal has proven to be an arduous and often avoided cure to erroneous rulings. In this sense, Brutus is correct: the Judiciary is uniquely independent, though that is not necessarily a bad thing (and Hamilton said as such). Benjamin Franklin famously quipped that the American system is “a Republic, if you can keep it”. It has been made clear that many Americans have shirked their duty to consider the long-term impacts of their passing desires. It is incumbent upon the coming generations to recognize that the abuse of power by the Judicial branch is a result of secularization and despite Constitutional protections, not because of them.

          The concept of an “imperial Judiciary” was introduced into legal and political discourse following the 1950s and 1960s to describe the notion of the judicial branch overstepping its bounds. According to former U.S. Attorney General Edwin Meese III, “this doctrine gives unelected federal judges awesome power.” Furthermore, it can be concretely defined as “whenever these judges exceed their constitutional prerogative to interpret law and instead read their personal views and prejudices into the Constitution… [making the] the least democratic branch of government… its most powerful as well.”4 For the purposes of this essay, this definition of an imperial judiciary will be utilized as a foundation to illustrate the causation between its rise and the rise of secularism.

         Its emergence can be marked with the ruling in Griswold v. Connecticut which established a Constitutional “right to privacy”. The Supreme Court rolled back the state’s democratically passed and instituted provisions which prohibited the sale of contraceptives, “not say[ing] which of [the Constitutional] amendments, if any, it thinks [were] infringed by this Connecticut law”5. Kicking off an era of reckless rulings with no basis in coherent exegesis, it paved the way for federally mandated legalization of abortion in all fifty states with Roe v. Wade (1973) and the ban on states legislating against certain sexual immoralities with Lawrence v. Texas (2003). Justice Stewart, joined by Justice Black, made a clear distinction in his dissenting opinion in Griswold v. Connecticut: “I think this is an uncommonly silly law… But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”5 All institutions of government are called to keep in mind the plane of statecraft – what shall be demarcated as that level of consideration not only of the present political landscape, but of the bigger picture; tempered by history and measured with the future in mind – and none more than the Judiciary. The solemn duty of adjudicators is to be impartial judges of law, and it is in that sense that the branch is uniquely charged, more so than the others, to keep this perspective at the forefront of its decisions. They hold no direct accountability to the momentary passions of men, and as such the entirety of their duty is to balance the impatient Congress and the cantankerous Executive with wisdom that draws from the past and projects itself forward into the future, grounded by the Constitution and an oath to God.

          It is in this conception that the development of judicial activism is not only a subversion of institutional integrity and purpose, but a systemic dissection of the role of the plane of statecraft in the American system. So, what does this have to do with the intensified secularization of society?

          Modern society differs radically, not only physically but spiritually, from the world of 1789. At the time of ratification, including the term “Creator” in a nation’s founding document made perfect sense to even the most religiously skeptical leaders. Natural rights, as they were known, were derived from God and guaranteed by good government. Thus, the aim of statesmen was to form a republic which best protected individual liberties while maintaining the general security and welfare of the nation from threats both internal and external. Champions of religious freedom such as President George Washington and President John Adams both also expressed the importance of expressly religious faith in “building the moral character of American citizens, [which] undergird[s] public order and successful popular government”6. Today, general society is increasingly secular and severed from God. Indeed, men placed in a position of judicial power can and have “[felt] themselves independent of heaven itself”7. It appears that the branch, so full of its own growth, now strives to cut away from its roots; chopping away at that which gives it life.

          Brad S. Gregory, a professor at the University of Notre Dame, points out that according to most modern intellectuals, to “be a modern, educated person [is] necessarily to be without religious belief.”8 He goes further, finding that an emerging supersessionist view of history has

made it seem “as if religious traditions [have] actually been left behind either as social realities or rendered intellectually untenable as competitors to secular ideologies.”9 A deeply religious  nation and world has been substituted for a secular one, and with this comes an inherent loss of shared values. In this new consensus, there is no longer any built-in allegiance to a transcendent power, but to the plane of statecraft alone. But, why is this detrimental? Should an allegiance to the long-term functioning of a nation be not that which statesmen aspire towards? It is most apt to explain this theory with an analogy, borrowing from Plato’s “ship of state”. An ocean liner anchored to the sea floor remains stable so long as the anchor line is maintained, and the anchor remains lodged in the land beneath. When a foundation of solid ground underneath the ocean is eliminated from the equation, however, the vessel may be weighed down by the weight of the anchor itself, but it lacks any objective basis. It will soon find itself at the mercy of the waves, winds, and most worryingly the impulses of the crew member who happens to wrestle control of the ship of state at the moment. Thus, to remove any inherent faith in a higher set of values—in a transcendent power—is to drag the plane of statecraft down towards the politics of the day. This unfortunate shift is signified as of late by prominent left-wing American political figures campaigning on packing the courts full of judges and justices whom are chosen not on their merits as an impartial practitioners of law but rather based on their positive personal views of the current political persuasions of one political party.

          Defending the Constitution and the judicial system it established, Alexander Hamilton wrote that “liberty can have nothing to fear from judiciary alone, but would have everything to fear from its union with either of the other departments”10. With the outgrowth of judicial activism, derived from a voluntary separation from God and the natural law, the courts have come to take the form of supra-legislatures. Passing federal mandates without democratic consent, usurping the rights of states to exercise their Constitutionally enumerated powers, and acting woefully outside of its limits, the Judiciary has become more concerned with upholding a recent precedent of anti-Constitutionality than staying within its bounds. Congress and the Executive have neglected their role as a check of the judiciary, worried that any hinderance of judicial actions—whether proper or improper—will weaken the institutional integrity of American government. Thankfully, the American system was established so that parts of government may hold one another to their Constitutional duties. There is an inherent and positive friction in the republican system which produces the paradox of checks and balances: parts of government checking themselves and restricting one another ultimately makes the ship of state more legitimate and institutionally sound than it would be if each part were left to grow outwards and rot within.

         Today, the government has indeed been enabled “to control the governed”. It is time that the branches of government “oblige [themselves] to control [themselves].”11 In order to reverse the decay of the greatest system of governance in the history of mankind, patriots of all disciplines must speak up, standing for a return to an anchored society and Constitutional government. A cultural shift away from radical secularism and towards a rich, faith-satiated society will not be easy, nor will it be the result of a singular action or set of reforms, but the first step is no doubt acknowledging the problem exists before it is too late.


1. Alexander Hamilton, The Federalist (Indiana: Liberty Fund, Inc., 2001), Federalist 78 – 402.

2. Melancton Lee, Richard Henry Lee, and Robert Yates, The Anti-Federalist Writings of the Melancton Smith Circle (Indiana: Liberty Fund, Inc., 2009), Brutus XI – 235.

3. U.S. Const. art. II, § 1.

4. Meese, Edwin. “The Imperial Judiciary—And What Congress Can Do About it,” the Hoover Institute, 23 Feb. 2020, https://www.hoover.org/research/imperial-judiciary-and-what-congress-can-do-about-it.

5. Griswold v. Connecticut, 381 U.S. 479 (U.S. 1968)

6. “Religion and the Founding of the American Republic,” Library of Congress, 23 Feb. 2020, https://www.loc.gov/exhibits/religion/rel06.html.

7. Melancton Lee, Richard Henry Lee, and Robert Yates, The Anti-Federalist Writings of the Melancton Smith Circle (Indiana: Liberty Fund, Inc., 2009), Brutus XV – 258.

8. Brad Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society (Massachusetts: The Belknap Press of the Harvard University Press, 2012), 26.

9. Brad Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society (Massachusetts: The Belknap Press of the Harvard University Press, 2012), 13.

10. Alexander Hamilton, The Federalist (Indiana: Liberty Fund, Inc., 2001), Federalist 78 – 402-403.

11. Alexander Hamilton, The Federalist (Indiana: Liberty Fund, Inc., 2001), Federalist 51 – 269.