Brutus predicted the present dysfunctionality of the Supreme Court in this letter.
In actuality, Brutus is Robert Yates. Yates was one of the leading Anti-Federalist and in 1790 he was appointed as the Chief Justice of the N.Y. Supreme Court. “From the beginning of the struggle for independence, although he did not sign the Albany Sons of Liberty constitution of 1766, he was prominent in the local resistance to the Stamp Act. By 1774, he had joined the Albany Committee of Correspondence and stood among its first members when the committee’s activities became public in 1775… In 1775, Yates was elected to represent Albany in each of the four New York Provincial Congresses. … In 1776-77, he served on the committee that drafted the first New York State Constitution and also was a member of the “Secret Committee for Obstructing Navigation of the Hudson.” In October 1777, Yates was appointed to the New York State Supreme Court.
“Yates was appointed with John Lansing, Jr. and Alexander Hamilton to represent New York at the Philadelphia convention to revise the Articles of Confederation. Arriving in Philadelphia, Yates and Lansing felt the mood of the convention to produce an entirely new form of government was beyond their authority. After sending a letter to Governor Clinton urging opposition to the new Constitution, they returned home. His personal notes from the Philadelphia convention were published in 1821.”[i]
In every sense, understanding the context of Article III would be right up Yates area of expertise. The key elements that Yates addressed and predicted regarding the federal Supreme Court are:
1. Extend legislative authority.
2. Increase jurisdiction of the courts.
3. Diminish and destroy both the legislative and judiciary powers of the states.
Yates foresaw judicial tyranny and despotism. He writes below that the system:
1. “…authorize(s) the courts, not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions.”
2. “…that they will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states”
3. “…the courts are to give such meaning to the constitution as comports (def. – behaves) best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety.”
4. “And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law…”
5. “The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: — I mean, an entire subversion of the legislative, executive and judicial powers of the individual states.”
6. “the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority…”
7. “…they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land.”
As you can see, Yates has predicted that which we have experienced since the late 19th century and worsened in the 20th century. Judicial tyranny has always been a part and possibility of the Constitution of 1787 and although there were these types of warnings; not a single amendment was accepted at that time to put more restrictions on the judiciary.
(all emphasis added to bring your attention to these factors)
Commentary by: Tom Niewulis
31 January 1788