At the founding of the republic, the Anti-Federalist opponents of the Constitution warned that to grant the power to declare laws unconstitutional to an unelected and life-tenured Supreme Court could subvert the democratic republic and threaten our liberties.
In the Anti-Federalist papers, "Brutus" argued that though there would be strong checks on the other two branches of government, the power of judicial review would give the court the final say in overturning laws enacted by the people's elected representatives in Congress and make the unaccountable judicial branch superior to the elected legislative branch.
Brutus wrote: "The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. ... The judges in England are under the control of the legislature ... but the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. ... (The authors of the constitution) have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions."
This was particularly dangerous, argued Brutus, because "when great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it." And "this responsibility, he said, "should ultimately rest with the people."
But under the proposed constitution, he noted, the court would be "independent of the people, of the legislature, and of every power under heaven." Anticipating Lord Acton's now-famous maxim that "absolute power corrupts absolutely," Brutus continued, "Men placed in this situation will generally soon feel themselves independent of heaven itself." Indeed, Brutus observed that judges could only be removed for improper conduct or "high crimes and misdemeanors"; they could not be impeached for errors in their judgment.
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