Americans could learn a lot about our nation (and the pettiness of elected officials) by watching Supreme Court Confirmation Hearings. But what is most important is the subject matter that Americans are not normally exposed to, nor would they remember outside of a high school American Government class.
I am not talking about the minutia of anti-trust law or the dull nature of a nominees’ answers or the prudence of the Ginsburg Standard, I am referring to the architectonic ideas that preserve and guide our republic.
These ideas are best understood by reading the Federalist Papers. Justice Scalia has said that a judge’s job is boring legal work. This is true for a percentage of cases, but there are also times when the Supreme Court is faced with landmark cases. These have the potential to alter the political landscape and they always require an understanding of our founding.
The protesters and some of the democratic senators were obsessed with Kavanaugh’s potential effect on policy. This is in error. I detailed several concerns in my last article.
Why is that important? Americans have a fundamental misunderstanding about the role of the judiciary. This why the Federalist Papers are essential. Few Americans are going to read them on their own. The confirmation process gives senators and the nominee an opportunity to reference these important documents.
What can we learn from the Federalist Papers?
The first thing is that they highlight the quality of civil debate in our nation’s founding generation. One can also look to the Anti-Federalist Papers and the records of the convention debates. Alexander Hamilton, James Madison, and John Jay passionately defended the structure and the content of the proposed constitution. With Eighty-Five entries, these papers go on for pages, describing the various aspects of the proposed constitution with references to European history, philosophy, and the governments of old. Current authors could not replicate the depths of intellectual heft presented in these works.
Secondly, we can also learn that our founders had real expectations for how the government were to function. There is some scholarly debate as to whether the founders were grand philosophers delicately planning out the most successful form of government or if they were pragmatists who stumbled upon a working form by logical reductions and experience. The Federalist Papers show that there was a purpose to everything. Obviously, there was compromise, but it was not as simple as “A monarchy is bad, let’s try something else.” We know from their own words, often over objections from the Anti-Federalists, that certain provisions were only intended to go so far. We know that congress was supposed to predominate. We know that the judicial branch is the least powerful. We know that the executive is the most prone to tyranny.
Lastly, we can learn that when dealing with the issues that come before the Supreme Court, the goal is not good and effective policy. A judge’s only concern is the Constitution. The framers understood that desirable policy has to enjoy broad support in order to be legitimate; this is why policy is difficult to make. It can only be done through an exercise of power, but who holds the power? The people do. So when the elected representatives of the people cannot exercise that power because of conflicting views, it is indicative that said policy is not desirable. If it were, it would be the will of the people. When it’s not, our government is designed to block the use of power for certain ends. The alternative is not, run to a judge, but rather convince the voters. So when people do run to a judge, the judge has no reason to care about feelings, about good policy, but rather his concern alone is preserving our system of government and upholding his oath to the constitution.
Both sides have gotten used to being able to run to the courts for a policy remedy. They neglect the standard set forth by our founders. Debate, write, convince your fellow citizens of the merit of your ideas and then vote on it. And what better way to debate than to look back to our founders and see their views on the subjects that concern our government. See their intentions for our Constitution.
Of course, you can use statistics, logic, political theory, sociology, empathy, and anecdotes to make arguments, but it’s best to start at the foundation. Start with the Federalist Papers. See how in 2018, during a confirmation hearing, they are still be used to guide our understanding of the Constitution. They are not archaic documents left to the historians and legal thinkers. They are well-reasoned explanations directed at the people of the various states, urging them to adopt a system of government most likely to respect rights, promote good, and restrain evil. Now, they inform us as to how we can preserve that good government.