Note: this piece was originally published in NBC News – Think, and was written by Checks & Balances member Edward Larson.
Alexander Hamilton argued in The Federalist Papers that, of the three branches of the government the founders were designing, the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” In other words, Hamilton — though he did believe that the Supreme Court should be able to rule on the constitutionality of federal law — thought the court would be the least powerful branch of government because it could not disturb the established political rights of all Americans.
Given the powers it has accrued since Hamilton’s day, no one could say this about a Supreme Court that has been stacked with political partisans. And, indeed, the main substantive arguments both for and against federal appeals Judge Amy Coney Barrett’s confirmation focus on the extent to which her potential rulings would affect such “political rights” as Americans’ access to the Affordable Care Act and the extent (or even existence) of their right to privacy.
The process by which the court accrued those powers it was not assigned, as well as the widespread acceptance of that process even by people like Barrett, who expresses her fidelity to originalism and textualism, is relevant both to the fight over Barrett’s confirmation and to the future of the court — as well as a telling indication that originalism and textualism are in the eye of the beholder, rather than objective distinctions.
Continue reading at NBC News – Think.