Folks on the Right are irate over President Biden’s proposals to reshape the federal Supreme Court:

On Monday, July 29th, President Joe Biden proposed a new amendment to the U.S. Constitution. It would impose term limits on the justices and force them to abide by an “ethics code.” This sounds innocuous, doesn’t it? Well, it is anything but. It is the first salvo of an unabashed attempt by the Democratic Party to fundamentally alter the balance of power between the three branches of the United States government (The European Conservative).

Stepman noted that the court is one institution that Democrats and other leftists have yet to establish control over, and interestingly, it wasn’t a problem until the court “shifted to the right.” “It’s a fairly ironclad rule in American politics that any institution the Left doesn’t control it will ultimately seek to destroy. So it goes with the modern Supreme Court,” he said. The court, in fact, now “represents a potential roadblock to their absolute power over American government.” So they are demanding to remove justices with whom they disagree, and install some of their own ideological compatriots (WND).

Their analysis is correct as far as it goes, yet they are overlooking the key point about the federal constitution itself:  It was written precisely to concentrate as much power as possible in the federal government.  The separation of powers was simply a neat ploy to divert attention away from that goal of the nationalists/centralizers, to calm the fears of the localists who were fearful of throwing out the Articles of Confederation.  The historian Merrill Jensen offers some insights that are often ignored in political discussions today:

Politically the dominating fact of the Confederation Period was the struggle between two groups of leaders to shape the character of the state and central governments.  The revolutionary constitutions of the states placed final power in the legislatures and made the executive and judicial branches subservient to them.  The members of the colonial aristocracy who became Patriots, and new men who gained economic power during the Revolution deplored this fact, but they were unable to alter the state constitutions during the 1780’s.  Meanwhile they tried persistently to strengthen the central government.  These men were the nationalists of the 1780’s.

On the other hand the men who were the true federalists believed that the greatest gain of the Revolution was the independence of the several states and the creation of a central government subservient to them.  The leaders of this group . . . were Samuel Adams, Patrick Henry, Richard Henry Lee, George Clinton, . . . and a host of less well known but no less important men in each of the States.  Most of these men believed, as a result of their experience with Great Britain before 1776 and of their reading of history, that the states could be best governed without the intervention of a powerful central government.  . . . the best of them agreed that the central government needed more power, but they wanted that power given so as not to alter the basic character of the Articles of Confederation.  Here is where they were in fundamental disagreement with the nationalists who wanted to remove the central government from the control of the state legislatures.

The nationalist leaders . . . were men like Robert Morris, John Jay, Gouverneur Morris, . . . George Washington, James Madison, and many lesser men.  Most of these men were by temperament or economic interest believers in executive and judicial rather than legislative control of state and central governments, in the rigorous collection of taxes, and, as creditors, in the strict payment of the public and private debts.  They declared that national honor and prestige could be maintained only by a powerful central government.  . . .  The nationalists frankly disliked the political heritage of the Revolution.  They deplored the fact there was no check upon the actions of majorities in state legislatures; that there was no central government to which minorities could appeal from the decisions of such majorities, as they had done before the Revolution.

. . . Outside the Convention [of 1787 in Philadelphia that drafted the current federal constitution—W.G.] General Knox was saying that a “mad democracy sweeps away every moral trait from the human character” and that the Convention would “clip the wings of a mad democracy” (The New Nation: A History of the United States during the Confederation 1781-1789, Northeastern University Press, Boston, Mass., 1981, pgs. 424-5, 426).

We are living with the repercussions of this debate still today.  When the Red States of the South and beyond pass laws in their State legislatures to ban puberty blockers for kids, limit access for children to social media, define marriage as between one man and one woman, teach the Biblical account of creation in public schools, etc., the nationalists pronounce this an ‘excess of democracy’ whose wings must be clipped by the federal government, often by the same Supreme Court conservatives are attempting to defend at this present moment.

Conservatives/Revivalists are not wrong in wanting to maintain the integrity of the judiciary, but instead of intense and myopic focus on the federal courts, they need to broaden their view to include the State judiciaries as well.  There they will find some overlooked tools to keep big government centralizers, whether Republicans or Democrats, from dominating politically.  We will get to that momentarily.

First, however, it must be noted that arguing over separation of powers within the federal government at this point is simply arguing over who will be the main director of the despotism the States live under, the seeds of which, sown in the Philadelphia constitution, came to full fruition when Lincoln launched his war of conquest against the Southern States, which transformed a voluntary union into an involuntary empire.  The distinguished Southern historian Dr Clyde Wilson of South Carolina describes very well the conditions that folks have experienced under those opposite systems:

The loss of states’ rights is coterminous with the rise of the American empire, where a vast proportion of the citizens’ wealth is engrossed by bureaucracy; where our personal and local affairs are ever more minutely and inflexibly managed by a remote power; where our resources are squandered meddling in the affairs of distant peoples.

That happy old Union was a friendly contract—the states managing their own affairs, joined together in matters of defense, and enjoying free trade among themselves. Indeed, enjoying free trade with the world, because the Constitution, as is sometimes forgotten, required all taxes to be uniform throughout the Union and absolutely forbade taxation of the exports of any state. The federal government was empowered to lay a modest customs duty to raise revenue for its limited tasks, but otherwise had no power to restrict or assist enterprises.

That is what the States United meant to our Founders, a union of mutual consent and support. It did not mean a government that dictated the arrangement of every parking lot in every public and private building in every town, and the kind of grass that a citizen must plant around his boat dock.

It did not mean the incineration of women and children who might have aroused the ire of a rogue federal police force, unknown to the Constitution and armed as for a foreign enemy. It did not mean that billions would be spent restoring oriental despots to their thrones in distant lands.

As Dr Wilson says later in his essay, the solution to this problem is not to be hyper-focused on the federal government, but to reassert the sovereignty of the States.  In the context of maintaining the proper boundaries of the federal courts, the State courts have a critical role to play.  We have mentioned before what Georgia’s high court once said about this.  Virginia, in the person of Spencer Roane, serving as a judge on that venerable State’s highest court, would add her profound contribution as well (for an overview of Virginia’s influence on the development of the US, have a look at the valuable video at this site).

Judge Roane was emphatic that the federal courts overstepped their boundaries when accepting appeals from decisions made by State courts and he and his colleagues refused to comply with such decisions (bolding added):

On receiving the mandate from the Supreme Court commanding the Virginia Court of Appeals to reverse its decision the judges unanimously refused. Roane’s opinion was especially strong, and was printed in the Richmond Enquirer February 16, 1816, under the heading, “An Interesting Case.” He first takes up the question of the constitutionality of the twenty-fifth section of the Judiciary Act, by which the right of appeal from the State to the United States Courts is given. He maintained that since the United States Government was one of granted power, any of its laws must be proved to be constitutional by showing that power to pass it has been granted. In no place in the Constitution can mention be found giving the United States Courts appellate jurisdiction over the State Courts, which are absolutely independent. This the act in question does. The part of the Constitution, second section, third article, from which this power is deduced, reads, “In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exception and under such regulations as Congress shall make.” This clause, however, he contended, referred only to the inferior United States Courts, and not to the State Courts, as will be seen by referring to that part of the Constitution which precedes this.  . . .  In conclusion, he said: “Upon the whole, I am of opinion that the Constitution confers no power upon the Supreme Court of the United States to meddle with the judgment of this court in the case before us; that this case does not come within the actual provisions of the twenty-fifth section of the Judicial Act, and that this court is both at liberty and is bound to follow its own convictions on the subject-anything in the decision or supposed decisions of any other court to the contrary, notwithstanding. . . .”

Judge Roane’s fellow Virginian Thomas Jefferson also sensed the danger of the federal courts and praised Roane for his actions to keep the federal leviathan from breaking out of its cage:

Jefferson wrote January 11, 1821: “I am sensible of the inroads daily working by the Federal into the jurisdiction of its co-ordinate associates, the State Governments….The Judiciary branch is the instrument which, working like gravity without intermission, is to press us at last into one consolidated mass. Against this I know no one who, equally with Judge Roane himself, possesses the power and courage to make resistance; and to him I look and have long looked, as our strongest bulwark.”

The nationalist centralizers are riding high at the moment, but that is to be expected thanks to the Philadelphia constitution.  But the States could still change that.  Though they unwisely created the federal government, they could make life difficult for the Feds if they chose to do so by reasserting their sovereignty.  State courts, just like State legislatures and governors, can and should nullify unlawful federal acts.  When the States are wise and bold enough to re-embrace good men from the past and their beneficial ideas, then they will begin to make some progress in reversing the consolidation of power in DC, though ultimately they will have to return to a governing framework closer to the Articles of Confederation if they wish for long-term victories.