An Early Critic of Judicial Review

An Anti-Federalist, RobertYates, writing as Brutus in 1787, makes a couple of interesting points in the passage I include below. First of all, he notes, I have pointed out, that "Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning."

Again, this was deliberate: when faced with a highly contested issue where it was very hard to achieve consensus, the framers solution was generally to write the thing up so vaguely that everyone could think their interpretation might prevail. This is obviously a real problem for those insisting we look to the original intent of the framers: How can we do that when the original intent was all over the place?

The second fascinating thing in Yates is his prediction that a Supreme Court established per the U.S. Constitution would have a tendency to interpret that document so as to grant itself more power. It only took until 1803 for Yates's prediction to be vindicated.In general, whether you like the way the U.S. government developed or not, the Constitution had many, many of the results the Anti-Federalists were warning about. My feeling is that if we could transport a typical Anti-Federalist to 2013, he would look around for a couple of days, and then proclaim, "I told you so!"

Enough, though, and on to Yates:




  1. Someone earlier made the point on how accurate were the predictions of the forgotten Anti-Federalists, in contrast to the Federalists that are greatly respected (because they won, not because they were right):

  2. I never understood this line of argument. What's to say that federal government wouldn't have simply assumed those same powers without SCOTUS? The courts could only have functioned as a limitation on it.