What is the proper role of the judiciary in American political life? There has never been a clear answer to that question, even among the founders. The Constitution itself has relatively little to say about the judiciary, delegating most of its design and much of its authority to congressional action. Alexander Hamilton in Federalist #78 argued that the judiciary could resolve disputes arising under the Constitution. But James Madison in Federalist #51 suggested that many such questions should be settled by the political process. Thomas Jefferson, in retirement, was aghast at the sweeping rhetoric of McCulloch v. Maryland, in which his cousin, Chief Justice John Marshall, employed Hamiltonian reasoning to legitimize the Bank of the United States.
The role of the Court has ebbed and flowed in American politics since the founding, but today it is closer to the apex of its powers. The Court claims final authority over a vast portfolio of questions—on federalism, individual rights, and even the relationship between the other branches. Just recently, in oral arguments in Trump v. Slaughter, the Court appeared poised to invalidate the structure of the Federal Trade Commission, despite the fact that it is the product of a century-old compromise between Congress and the president, which the two branches have been content to leave alone for most of the intervening years.
Most debates about the Court revolve around how it should decide its cases. A common assumption is that it possesses the power to make those decisions. But not everybody agrees. At least a few scholars have questioned the ostensibly limitless authority of the contemporary Court. Among these dissenting voices are Mark Tushnet in Taking the Constitution Away from the Courts (2000), Keith Whittington in Political Foundations of Judicial Supremacy (2009), Greg Weiner in The Political Constitution (2019), and more. In the same vein, Thomas Bell’s The Constitution of Conflict: How the Supreme Court Undermines the Separation of Powers offers a timely and persuasive critique of judicial interference in the separation of powers.
Bell’s work serves as a contemporary updating of Madisonian thought from Federalist #51. The context of that essay is often overlooked but extremely important, as it is the culmination of a mini-series within the Federalist, begun in #47, on how the constitutional doctrine of separated powers could be sustained. After rejecting the idea of a total separation as impractical, and Jefferson’s idea of appealing to the people, Madison concludes: let the branches work out the boundaries for themselves. The framers, Madison asserts, ensured that the president, the Senate, and the House would all stick to their respective parts by pitting them against one another, and ensuring that “provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Bell updates this Madisonian position and argues that disputes between Congress and the president should be resolved between Congress and the president.
This position, while commonsensical to a Madisonian republican, runs contrary to the conventional views of the legal profession, in which checks and balances are understood through the lens of formalism or functionalism. The formalists seek to use the Court to police the boundaries of the branches, ensuring that they stay within their constitutionally prescribed limits. Functionalists, on the other hand, offer a more flexible approach and instead see the Court as maintaining balance between the branches. Formalists and functionalists alike hold that the Court should “superintend” the other branches.
In contrast, Bell argues that both positions fundamentally misunderstand the Constitution as a legal document, “primarily, if not exclusively, the property of lawyers and judges.” He maintains it is, rather, political in nature. It establishes a “legally indeterminate political architecture,” the specifics of which must be negotiated over time between Congress, the president, and ultimately the people themselves. The purpose of the Constitution, as Bell neatly puts it, is to create “a self-enforcing political order rather than operating as a legal code to be applied by the judiciary.”
This understanding of the Constitution as a primarily political document suggests a view of checks and balances that is radically different from conventional wisdom. No longer should the Court serve as an interbranch police force. Instead, checks and balances become the framework by which the executive and legislative branches negotiate with one another—with each bringing to bear its constitutional prerogatives and unique perspectives on public opinion. Bell argues, “The needs of the polity might bend and stretch the Constitution’s legal limits, but the political branches are hardwired to vindicate the Constitution’s competing principles through political contestation.” The Supreme Court need not involve itself, per Bell, who pointedly notes that Madison’s Federalist #51—the signature treatise on checks and balances from the founding—does not even mention the Court.
Through a series of case studies, Bell teases out important implications of this theory for contemporary politics. He argues that the legislative veto, struck down by the Burger Court as an unconstitutional legislative encroachment on presidential power, “was actually an example of the dynamism of the Constitution’s separation of powers.” Executive agreements—frequently used today in foreign affairs rather than formal treaties—are not a violation of separation of powers doctrine, but “the working out of the Constitution’s political logic,” leveraging the executive branch’s unique capacities to navigate the post-World War II global order. He argues that the Court’s ruling in NLRB v. Noel Canning—which struck down a recess appointment made by President Barack Obama—“actually subverted the Constitution’s political processes,” one in which the “problem of unfettered partisanship” should have been resolved by the “political contestation between the branches.” Finally, he considers the impeachment power, arguing against a legalistic understanding and conceptualizing impeachment as a vital tool of congressional oversight against an overpowered executive.
The sum of these various considerations points to a political process that has been impoverished by the Court’s legalistic interventions. Bell’s argument is thus orthogonal to the contemporary debate between originalists and living constitutionalists, suggesting that both miss the point by elevating the Court to a position that the framers did not intend and the Constitution does not require.
Bell’s work is tightly focused on the issue of separation of powers, as it should be to build the effective case it mounts. But the implications of the argument call into question the role of the federal judiciary in contemporary politics, beyond the issues discussed here. Every aspect of our public life is now at the mercy of judicial review. It does not matter if a precedent is a century old, affirmed by subsequent generations again and again. Even that can be consumed by the insatiable judicial maw. This was not the intention of the drafters of the Constitution in Philadelphia, nor of the conventions that ratified the Constitution. And, per Bell, it diminishes the republican character of our government, as the political branches can and should work out many of their disputes for themselves.
That is not to suggest that the Constitution does not have sweeping legal implications, or that judicial review has no role in our polity. Even Jefferson, a fierce critic of the Marshall Court, believed that the judiciary could protect individual rights from governmental abuse. But there are limits, which today’s Court does not respect. Consider again Trump v. Slaughter. If the Court eventually strikes down the structure of the Federal Trade Commission, it will likely do so in the defense of checks and balances. But, as Bell notes, the whole point of checks and balances is that the branches can defend themselves. Thus, the Court’s involvement in the dispute is an arrogation of power that does not belong to it. By seeking to defend the system of checks and balances, the Court is actually vitiating it.
This suggests one limitation of the work: What is the proper role of the Court, and relatedly, why has it overstepped its boundaries? Bell acknowledges that his work “exists well outside of the scholarly mainstream” on the proper role of the Court. But if the logic of checks and balances implies political resolutions to interbranch relations, as Bell argues, how was it that the country went on the wrong path? Have the other branches accepted this because it is politically convenient to kick off controversial questions to the Courts, as Whittington has argued? Bell’s perspective would have been interesting on this point, but there is no extended discussion. Though he acknowledges that “judicial superintendence of the separation of powers” places the court “above the other branches,” I would have appreciated more of Bell’s view of the appropriate limits of judicial review, and of how the Court has not only come to exceed its limits, but receive near-universal praise for doing so.
Another point on which more of Bell’s perspective would have been appreciated is the historical logic motivating checks and balances. One clue, left unmentioned by Bell, is that Madison’s Federalist #51 relies heavily upon Polybius’s account of the Roman political system in the Histories. Polybius argued that the way the Roman Republic avoided a seemingly inevitable slide into tyranny was by distributing power broadly, then setting ambitious elites against one another. That prevented the corruption that had felled past regimes. Checks and balances thus run parallel to the Madisonian theory of the extended republic, discussed at length in Federalist #10 then recapitulated at the conclusion of Federalist #51. Both fit into Madison’s essential idea that a republic cannot be sustained by vesting power in any one individual, group, or even institution. It must be distributed broadly, under well-designed rules of political conflict for which all parties have an incentive to sustain. Just as the extended republic regulates factions within the broader society, checks and balances regulate political elites within the system. Fair rules are established and enforced in both cases in the absence of a final ruling authority, because such an authority can always be corrupted. From this perspective, the notion of judicial superintendence of checks and balances becomes especially absurd—for it empowers a specific group in a system designed specifically by individuals who thought such a “neutral umpire,” to borrow Madison’s phrase, is unlikely to be found. Greater consideration of the founding logic of checks and balances would have strengthened Bell’s argument that checks and balances create flexibility for compromises between the political branches that today’s Court would otherwise judge to be invalid.
Still, these are mere quibbles regarding what a timely, controversial, and well-reasoned book is. At a moment when the Supreme Court wields seemingly unlimited power, Thomas Rives Bell persuasively asks us to reconsider the capacious role that the modern court has established for itself. In so doing, he reminds us of the real purpose of not only checks and balances, but of the Constitution itself. As Bell puts it, “The framers understood the system as a means to the various politically contingent ends of the polity.” The separation of powers is thus “not primarily a legal principle,” but “a political architecture of differently designed institutions that bring to bear competing functional qualities and perspectives on the political questions that confront the polity.” Madison himself suggested as much in 1789, as the First Congress was creating the executive departments. The legislature confronted the problem of executive removals, on which the Constitution is silent. Madison defended the president’s right to remove executive officers, but others suggested that the power belonged to Congress. In considering whether the Court should be invited to consider the problem, Madison argued,
Nothing has yet been offered to invalidate the doctrine, that the meaning of the constitution may as well be ascertained by the legislative as by the judicial authority. When a question emerges as it does in this bill, and much seems to depend upon it, I should conceive it highly proper to make a legislative construction.
Bell does an excellent job of developing Madison’s position in The Constitution of Conflict. Would that the justices of the Supreme Court might read this timely and insightful work.
Jay Cost is the Gerald R. Ford Senior Nonresident Fellow at the American Enterprise Institute. He is the author of five books, most recently Democracy or Republic? The People and the Constitution (AEI Press, 2023). This essay previously was published by Law & Liberty.
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