The federal courts have granted to themselves on their own authority overwhelming power over matters that before the middle of the 20th century were considered none of their business. They have turned virtually all political questions into legal ones.
I will start with an accidental prophecy from a prominent Virginian of the early republic (one of the Fathers, as Mel Bradford would say). Although he was optimistic about the success of the republican “experiment,” he had reservations.
“Perhaps, too, there may be a certain degree of danger,” the Father wrote, “that a succession of artful and ambitious rulers, may, by gradual and well-timed advances, finally erect an independent government on the subversion of liberty.” By “independent,” he meant a government free from the control of the people—the opposite of what a republican government was supposed to be.
I call this prophecy accidental, because James Madison, its author, didn’t really believe that the American people would ever lose control of their government. Or, if they did, he thought it would be so far distant in the future from 1787, the birth year of the new Constitution, that it was not worth worrying about.
Madison’s fear was rather the opposite: that the will of the people, exercised through their state legislatures and embodied in their state republics, would have full sway, trampling upon the rights of propertied minorities. “It is much more to be dreaded that the few will be unnecessarily sacrificed to the many,” he wrote, than the many will be sacrificed to the few.
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