COLUMN: The Supreme Court has helped to expand the power of the Government
After the Constitution was signed on Sept. 17, 1787, it went to the states for ratification. The Constitution was widely read and its provisions were the subject of much discussion and debate. During the debate, documents called the “Anti-Federalist Papers” were written and circulated. These documents presented what their authors felt to be reasons against the ratification of the new Constitution.
One of the provisions of the Constitution discussed in these papers was the creation of the Federal Judiciary. In the paper known as “Brutus XI” (“Brutus” was the pseudonym used by the one of the authors of the Anti-Federalist Papers), the author noted several concerns he had about the proposed national court.
Brutus was concerned that the federal judiciary would remove a great deal of power from the legislatures and courts of the individual states. He also feared that the courts would be able to interpret the spirit of the Constitution without being bounded by the specific wording of the Constitution. Brutus was also concerned that the opinions of the court would have the force of law. Brutus felt the Court would actually work with the other branches of the federal government to expand the powers of the government. This would serve to expand the power and prestige of the court. Brutus concluded his discussion by expressing his concern that the national court would be able to “mold the government in any way they please.”
When one looks at the actions of the Supreme Court since its creation, it is clear that Brutus’ fears were not unfounded. The court has worked to expand the powers of the federal government, although probably at a much slower rate than Brutus anticipated.
The court has often been very eager to expand the power of the federal government. One example is during the Great Depression and the New Deal era. When the programs of FDR’s New Deal were first begun, the Supreme Court struck down many of them as unconstitutional. In response, FDR proposed legislation that would allow him to appoint one new justice to the Supreme Court for every justice over 70 years and six months old. This would have allowed FDR to place several justices in the court that would be willing to accept his programs. The bill did not pass, but its desired results were obtained, and the Supreme Court began to hold the New Deal programs to be constitutional.
The court has often turned to the “commerce clause” of the Constitution to allow for the expansion of the powers of the federal government. This clause, found in Article I, Section 8, allows Congress to “regulate commerce … among the several states.” The court has broadly applied this clause to allow Congress to regulate a wide range of activities.
The Supreme Court has also used the 14th Amendment extensively to expand its powers by intruding in the internal affairs of the states.
Although the Constitution declares all legislative authority rests in the Congress, the Supreme Court has done much to create its own form of legislation. Just as Brutus feared, the opinions of the court have been given the authority of law.
There have been times in which the court has temporarily checked the expansion of the government. However, the general trend has been to allow for the expansion of government authority, which has expanded the power and authority of the court.
Jefferson once stated, “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.” The words of Jefferson ring true today.
Colby Lyons is a senior majoring in law and constitutional studies. Comments can be sent to him at c.lyons@aggiemail.usu.edu