Supreme Court: Outside of the Lines?

Fire of Liberty

Arthur Herman, a Historian and author of How the Scots Invented the Modern World and To Rule the Waves, has a wonderful piece on the history and the original intent of the US Supreme Court over at National Review Online. Herman recalls the 1787 Constitutional Convention not only had the likes of Franklin, Hamilton, Washington, Adams, Jefferson, Jay, Madison but also had a little known delegate from Philly named James Wilson. This little known delegate should be well known because he was the one who proposed that the US should have a Supreme Court. As most historians will tell you, the founding fathers were deeply influenced by Scottish Enlightenment figures like Adam Smith, David Hume, such was the case for Wilson who found inspiration for the formation of the Supreme Court from Thomas Reid.

Just read what Herman had to say about Wilson's concept and intent of this Judicial body:

Reid's common-sense philosophy laid the foundations for a living science of human freedom. Although it is almost forgotten today, it had a huge influence on post-revolutionary America — and on Wilson's idea of a Supreme Court. On the one hand, Wilson explained to his fellow delegates, such a court would uphold the rule of law: but on the other, it would not "disparage the legislative authority" or to "confer upon the judiciary department a power superior, in its general nature."

Instead, the Supreme Court was supposed to give American democracy a power it would desperately need, the power to use its common-sense judgment in a reflective way. By looking at a particular law, judges would decide whether it fit into the essential framework of the constitution, or not. This power of judging what is or is not constitutional was not something reserved for legal experts: It belonged to any ordinary citizen. Being a "judge" was for Wilson something more than just a legal or professional title. He had learned from Reid that all human beings are by their nature judging animals, who sift and evaluate the facts of experience with their common sense, and then decide and act accordingly.

After watching the inane activities and legislative rulings of the High Court in these recent years, I think the Court would be wise to look at what James Wilson intended the Court to be and not what it has become. Aside from Herman's article on the Court, you also have several books like Men In Black: How the Supreme Court is Destroying America, The Supremacists: The Tyranny of Judges And How To Stop It which focus on how far the Supreme Court has moved away from its original intent. I expect this to become a major focus in the upcoming months and in the 2006 elections.