With controversial Supreme Court decisions raining down the last several weeks, some people are questioning how we got here. The truth is, we’ve been here before. Nearly 250 years ago, the Founders were debating the same things we do today — government overreach, freedom, presidential power.
But they were more worried about the fundamentals: What entities have power, if it’s right for them to have that power, how different power structures (like federal courts) coexist with states, executive authorities, and legislative bodies. Not only do these questions still linger, but they also impact how you view abortion access, gay marriage, and rights to privacy.
Ultimately, the Founders decided they wanted the federal government to be limited. And the text of the Constitution reflects that sentiment. But the text wasn’t (and isn’t) enough to overcome far-fetched constitutional interpretations that expand federal power to the detriment of state sovereignty. The Anti-Federalists predicted this.
The birth of federalism
In the late 18th century, Americans did not see themselves as citizens of the Union. They saw themselves — and commonly referred to themselves — as citizens of their native state. States’ individual engagement with foreign entities often conflicted with national treaties and competed with other states. This was unsustainable for a united United States.
The Founders were compelled to form a framework creating unanimity in foreign affairs while allowing states to exist with a degree of autonomy. The linchpin of their attempt to protect those principles was Trias Politicas, or the separation of powers — dividing government into equally powerful, cross-checking legislative, executive, and judicial branches — and federalism.
Federalism limited the federal government to national issues and allowed state governments to control virtually everything else. This was meant to allow states to handle that which is closest to their citizenry.
As Charles Krauthammer put it, “By what logic are the norms of a vast and variegated people better reflected in nine appointed lawyers produced by exactly three law schools?”
The letter of the proposed Constitution permitted this. So, John Jay, Alexander Hamilton, and James Madison wrote a series of essays encouraging the ratification of the Constitution. We know these essays as the Federalist Papers, published under the pseudonym Publius.
But the Anti-Federalists — Robert Yates, George Clinton, Samuel Bryan, Melancton Smith, and Richard Henry Lee — who wrote under the pseudonym Brutus, saw government as a struggle for power. The Anti-Federalists wrestled with how the letter of the Constitution would be applied in the long-term inevitability that the federal government would want more power.
Brutus predicted a future where federal authority was so wide-ranging that “the powers of the general legislature extend to every case that is of the least importance.” Brutus’ prediction was right, and the Supreme Court turned out to be one of the worst offenders.
Federal overreach
At the height of the Great Depression, Congress passed the Agricultural Adjustment Act of 1938, limiting the amount of wheat farmers could cultivate. Soon after, Roscoe Filburn was fined for growing 12 acres above what the Act allowed; he challenged the fine, appealed it to the U.S. Supreme Court — and lost in 1942.
In Wickard vs. Filburn, the Court ruled against Filburn because Congress passed the Act under their constitutional authority to “regulate commerce with foreign nations, and among the several states,” according to the Commerce Clause. The Court interpreted that clause as allowing the federal government to regulate everything that affects commerce “among the several states,” or interstate commerce.
The problem is Filburn did not engage in commerce — interstate nor intrastate; he grew wheat for personal consumption only. But the Court believed Filburn’s wheat cultivation disincentivized the interstate sale of bread, which put the wheat Filburn grew in his yard squarely in Congress’ authority to regulate commerce among states. Seems absurd? I agree. As the Anti-Federalists predicted, the Constitution’s paper protection was insufficient to guard states’ rights.
Under a normative perception of the separation of powers, the Supreme Court should have reversed the Agricultural Adjustment Act, checking Congress. They didn’t. Not only were eight of the nine Justices President Franklin D. Roosevelt appointees (FDR championed the Act as part of his New Deal), but they were also actors of the federal government. Then as now, Supreme Court Justices have no incentive to limit federal power; federal power is their power. So, Wickard vs. Filburn is a prime example of the constitutional system failing, as Brutus predicted, because of humans’ inclination to amass power.
Take 2008’s Kennedy vs. Louisiana. There, the Court held that it is unconstitutional to apply the death penalty to child rapists who don’t intend to kill their victims. They reasoned that applying the death penalty where death was not the intended result of the offense is “cruel and unusual” under the 8th Amendment because of “evolving standards of decency” and the Court’s “independent judgment.” Who made the Court of nine boomers deciders of evolving standards of decency?
As Charles Krauthammer put it, “By what logic are the norms of a vast and variegated people better reflected in nine appointed lawyers produced by exactly three law schools?”
The Court was plain wrong. The Constitution says nothing about the death penalty only being used for limited offenses that don’t affront “evolving standards of decency” and the Court’s judgment (who made them king?). It says a defendant can be sentenced to death once they’ve received due process. Which kinds of offenses qualify for death is up to the states.
Well, it was up to states before the Supreme Court unilaterally took child rapists off death row. Just who do they think they are?
Prestige disparity between federal and state courts
Brutus also predicted the disparity that developed between state and federal courts: “It is easy to see, that in the common course of things, these courts will eclipse the dignity, and take away from the respectability, of the state courts.”
We see this today. State courts are taken less seriously than federal courts. This is, in part, because of variations in how state court judges are selected — some by election, others by appointment, or some mix of the two. Federal judges, however, are nominated by the President, the most powerful person in the country, then confirmed by the Senate, the higher chamber of Congress. Elitism is baked into the federal selection process, making the threshold for entry to federal courts higher and, thus, more prestigious than state courts.
This also reflects in the type of cases federal and state courts handle. It means something different when a case is “taken federal.” There’s a seriousness attached to federal courts that is seldom associated with state courts. This is because the creation of federal courts fostered a system where “state courts handle most disputes that govern our daily lives.” State courts handle marriages, divorces, property disputes, child custody, and basic criminal law, among other things.
The hyper-accessibility of state courts to average people compared to the relative inaccessibility of federal courts to average people creates a paradigm where only high-level cases are decided by federal courts.
What to make of this
The Anti-Federalists were right. They foresaw the naivety in Federalist assumptions that institutions would abide by the letter of the Constitution. They predicted the usurpation of states’ rights, which we’ve seen develop through the Commerce Clause in cases from Wickard vs. Filburn to Gonzales vs. Raich (2005). As a result of creative, power-hungry interpretations of that clause, the federal government now regulates what people grow in their yards, including medical marijuana, which is what Raich was about. This would have been unimaginable to the Founders.
The Anti-Federalists also predicted the dilution of state courts’ prestige. Now, that prestige rests with the federal courts, which have more power than state courts. Because of the inertia of humans’ lust for power, our ever-power-greedy federal government has expanded in ways consistent with Anti-Federalist predictions … Hindsight is 20/20.
Jemille Q. Duncan is a public policy professional, columnist, and Gates Scholar at Swarthmore College.
