In an extremely insightful Prager University video titled “Why We’re Losing Liberty,” Dr. Robert George, Professor of Jurisprudence at Princeton University, explains that the Founders never foresaw that the Supreme Court would become the powerful entity it is today. Here is the seminal portion of this excellent PragerU course:
Both the Bill of Rights and judicial review — the idea that the courts can decide if a law is Constitutional or not — were hotly debated items when the Constitution was being drafted in 1789. The Federalists, the group led by Alexander Hamilton that wanted a national constitution, opposed including a Bill of Rights. They feared it would actually undermine what the Federalists regarded as the main protections against tyranny in the document — the limited nature of the national government itself.
The Constitution did not envision a national government of general jurisdiction — meaning a government that could do whatever it wanted — but rather, a government of enumerated and delegated powers — a government that had authority over only specific areas of American life. All other powers were to be beyond the scope of the national government and reserved to the States or to the American people themselves. That’s why, when political necessity forced the Federalists to yield to demands for a Bill of Rights, they took care to add two important amendments — the ninth and tenth:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
These amendments reinforced the idea that the national government couldn’t just assume powers it had not been specifically granted by the Constitution. Unfortunately, these amendments have not stymied the expansion of the national authority. The power grab the Federalists feared — the national government taking more and more control over more and more areas of American life — took place. Not immediately, but over time, and especially beginning in the second half of the 20th century.
That same time frame has seen a similar concentration of power in the judiciary, especially in the Supreme Court — so that now, most Americans think of the Supreme Court as the ultimate arbiter of almost every social and political dispute. The Founders never envisioned the court in this role.
The entire video can be viewed here:
This video also is available here. Be sure to visit the Prager University website and the page on which this video is available.
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