PA Bill Number: HB335
Title: In inchoate crimes, further providing for prohibited offensive weapons.
Description: In inchoate crimes, further providing for prohibited offensive weapons. ...
Last Action: Removed from table
Last Action Date: May 1, 2024
Founding Fathers Never Meant for Judges to Decide Issues Like Same-Sex Marriage :: 05/07/2015
In the discussions about the proper role of the federal courts by the delegates to the Constitutional Convention in Philadelphia in the summer of 1787, and in the public debates about the proposed Constitution that Fall, the Founders expressed widespread concern about judges taking ultra vires lawmaking action. They were aware that because federal judges would have the last word in interpreting the Constitution, they would have the power to make illegitimate judicial decisions that would impose their (the judges’) own political will instead of the will of the people (the true sovereign in the American constitutional Republic).
Specifically, the Founders, as can be read in “James Madison, Notes of Debates In the Federal Convention of 1787 Reported by James Madison,” expressed concerns that the federal judges might become like “the justiciary of Aragon” who, by striking down laws and imposing their own policy preferences upon the people, “became by degrees, the lawmaker.”
The history of the founding of the Constitution clearly shows that both Federalist and Anti-Federalists believed that the exercise of judicial authority to create new legal policies in derogation of long-established institutions and precedents, and contrary to the due process of the political branches, was illegitimate and improper. Interestingly, most of the discussion in the Constitutional Convention came in discussions of a proposal to create a “Council of Revision” including federal judges and executive and legislative representatives. James Madison and his close ally, James Wilson, thrice proposed a Council of Revision with elected and judicial representatives to give judges power to help enact laws and to protect their position in the government. The proposal of a Council of Revision was rejected every time.
The main reasons for rejecting Madison’s proposed Council of Revision was objection to getting judges involved in the process of enacting laws. For example, when it first was proposed, Mr. Pinkney from South Carolina conceded that he initially had liked the idea but now opposed it, in part because “[h]e was opposed to an introduction of the Judges into the business [of making laws].” Mr. Dickenson of Delaware added that ‘[h]e thought too a junction of the Judiciary to [the Council], involved an improper mixture of powers.”
John Dickenson was perhaps the most widely-respected (and probably the best-educated) lawyer to serve as a delegate to the Constitutional Convention. He was one of the few American lawyers who had formally studied law in England; after reading law in Philadelphia, he was sent to study law at Middle Temple in London, then in the Inns of Court, and finally at Westminster. So his opposition was not lightly brushed aside. Indeed, the opposition to the Council of Revision carried the day.
However, the proposal of a Council of Revision was again raised, a month later. Again, Mr. Gerry of Massachusetts vigorously opposed, arguing against giving judges a role in making the laws. A Council of Revision with judges “was liable to strong objections. It was combining [and] mixing together the Legislative [and] the other departments. It was establishing an improper coalition between the Executive [and] Judiciary departments.” Mr. Gorham of Massachusetts also raised “two objections ag[ain]st admitting the Judges to share in [the power to check the legislature] which no observations on the other side seem[ed] to obviate.” Another objection was “the Judges ought to carry into the exposition of the laws not prepossessions with regard to them. . . .”
Likewise, “Mr. Strong [of Massachusetts] thought with Mr. Gerry [of Massachusetts] that the power of making [the laws was] to be kept distinct from that of expounding, the laws. No maxim was better established. The judges, in exercising the function of expositors, might be influenced by the part they had taken in framing the laws.”
While the Founders rejected a Council of Revision, over the years the Supreme Court may have evolved into a de facto Council of Revision – if not a justiciary of Aragon.
Last month, the Supreme Court heard oral argument in the Obergefell case. The main issue in the case is whether states (specifically Ohio, Michigan, Kentucky and Tennessee) may define marriage as the gender-integrating union of a man and a woman – only (not allowing same-sex couples to marry).
The definition and regulation was clearly a policy issue reserved by our Constitution for the states to decide. And it is clear that the Founders of our Constitution thought that the federal judiciary should have no role in creating such marriage laws or policies. That is evident from the Founders’ disparagement of a “justiciary of Aragon” and their repeated rejection of a “Council of Revision,” in which judges could participate in making the laws.
Yet, in Obergefell, the Supreme Court is considering whether it (the top federal court) should redefine marriage for the entire nation. It is deciding whether it, the Supreme Court, will impose a very controversial substantive marriage policy upon, and in, all of the states.
Ironically, it is clear that the Founders would have considered the definition of marriage to be beyond the legitimate authority of even a Council of Revision. It is clear that they would have considered such a federal judicial decree to be an act like that of the justiciary of Aragon.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.
