Lawrence Goldstone writes:

Following Justice Ruth Bader Ginsburg’s death, Democrats, not surprisingly, are outraged at Republicans’ course reversal on filling a vacancy during an election year. Two proposals are gaining momentum among commentators and progressive activists: expanding the number of justices and instituting term limits. These ideas almost always seem to smack of political revenge.

But to think only in terms of getting even is to miss the point. Each of these notions is in line with what the Founders of this nation expected when they drafted the Constitution, and what many of them designed as members of the First Congress.

When the delegates to the Constitutional Convention were trying to devise a formula for a new government that would be effective, they also needed it to be embraced by a leery citizenry, which feared despotism, particularly with respect to a national judiciary. These sentiments were prophetically voiced by “Brutus”—whose identity remains unknown—writing against ratification in New York. Courts of law, he warned, “will give the sense of every article of the constitution that may from time to time come before them. 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, because there is no power provided in the constitution, that can correct their errors or control their adjudications. From this court there is no appeal.”

And so many delegates opposed giving a federal judiciary any real power. In addition, each state already had a functioning legal apparatus whose independence would be diminished as the authority of a federal judiciary increased. Finally, in a nation where allegiance to one’s state was preeminent, many Americans were loath to cede control to citizens of other states, whom they viewed as foreigners.

At only six paragraphs long, the brevity of Article III—the section of the Constitution that established the judicial branch—is a reflection of an unwillingness to commit to wording that might be rejected by the states during ratification. Article III is, in the end, more notable for what was left out than what was included. [Continue reading…]