An Omnipotent Judiciary
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writing under the name of ‘‘Cato,’’ repeated the charge, asserting that the
Constitution inclines toward an ‘‘odious aristocracy and monarchy.’’ The
President, he said, has so much power that his office ‘‘differs very immaterially from the establishment of monarchy in Great Britain.’’
An Omnipotent Judiciary
The Anti-Federalists were also generally agreed that the Federal Judiciary would swallow up the State courts under the new system of government. ‘‘Brutus’’ addressed the issue at considerable length, producing
what are surely the most extensive analyses of judicial power written by
an Anti-Federalist. His main concern was Article III, Section 2, which
provides that ‘‘The judicial power shall extend to all cases in law and
equity arising under this Constitution, the laws, and treaties made, or
which shall be made, under their authority.’’ This can only mean, said
‘‘Brutus,’’ that Article III vests the judicial branch ‘‘with a power to resolve all questions that may arise in any case on the construction of the
Constitution, either in law or in equity.’’ By what principles of interpretation, he asked, is the Constitution to be construed?
Since the Federal courts were empowered to decide cases in equity as
well as law, it appeared that the Federal judges were free to interpret the
Constitution ‘‘according to the reasoning and spirit of it, without being
confined to the words or letter.’’ This was true, said ‘‘Brutus,’’ because
equity law gave the courts broad discretion. Equity law emerged not in
the common law courts of England, which follow strict rules of construction, but in the courts of chancery, which follow virtually no principles of
interpretation. The goal of equity jurisprudence is ‘‘natural justice’’; it
seeks to produce fairness, as the judges understand it, and to override the
common law when it stands in the way of this objective. Quoting Hugo
Grotius, the great scholar of international law, ‘‘Brutus’’ contended ‘‘That
equity, thus depending essentially upon each individual case [rather than
precedent], there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a
positive law.’’
It therefore followed, said Brutus, that ‘‘The judicial power will operate to effect in the most certain, but yet silent and imperceptible manner,