The Supreme Court radically altered the meaning of the First Amendment this year — in an unsigned opinion

The United States Supreme Court issued on April 9 a decision in Tandon v. Newsom that struck down California's covid pandemic-related rule that limited the size of all events held in private homes, including religious gatherings, to three people per household. In an unsigned, four-page opinion, the high court's right-wing majority radically altered the law governing the First Amendment's free-exercise clause claims for special religious exemptions from otherwise generally applicable laws.

Since the Supreme Court's 1990 decision in Employment Division v. Smith, the free-exercise clause has been understood to require religious exemptions only to laws that discriminate against religion—that is, government cannot target religion for worse treatment. The California covid pandemic-related rule easily passed this test, for it limited the size of all gatherings in private homes, religious and secular alike.

In Tandon, however, the court flipped that rule. Under its new "most favored nation" approach, the government must provide a religious exemption if a law contains any secular exemption for "comparable" activities. Because California allowed larger groups to shop in supermarkets, it had to let larger groups pray indoors. The only way out was if California met a "strict scrutiny" standard by showing the law's application to religion was absolutely necessary to meet a compelling government interest.

In lower court proceedings, California public-health officials provided testimony that should have met that standard. "When people gather in social settings," they stated, "their interactions are likely to be longer than they would be in a commercial setting," with participants "more likely to be involved in prolonged conversations." They added that "private houses are typically smaller and less ventilated than commercial establishments," and that "social distancing and mask-wearing are less likely in private settings and enforcement is more difficult." But the Supreme Court's five conservatives, who have no apparent public health expertise, ignored this testimony.

Tandon is an enormous expansion of the government's obligation to provide religious accommodations to countless statutes and regulations. It's also questionable public health policy. But the most serious problem with what the Supreme Court's conservatives did in Tandon can be summarized in four words: They made it up.

That is, the Constitution does not mandate the "most favored nation" rule. The First Amendment prohibits government from either establishing religion, or prohibiting its "free exercise." But on what basis does the Supreme Court decide "free exercise" licenses such a searching judicial examination of public-health laws? The text doesn't say that. And neither history nor precedent command that approach.

At bottom, what the Supreme Court did in Tandon isn't law. It's politics. Which may help explain why the Supreme Court created this sweeping new rule through its shadow docket—which is to say, those cases decided with minimal briefing and no oral argument outside the court's normal procedure. In doing so, the court broke its own rules that bar it from changing the law in a shadow docket opinion.

None of this should surprise us. As I've written previously, Republicans have built their recent political strategy around stocking the federal bench with right-wing partisans. As a consequence, we are approaching a level of ideological conflict where politicians might start thinking about defying the court's rulings—especially rulings rooted in highly politicized readings of the Constitution, as Tandon was.

Which led me, on the morning following the opinion's release to tweet out a question:


The answer to this question, I think, is that Joe Biden, or any president, is free under the Constitution to decline to enforce any order of the Supreme Court that he or she believes to be unconstitutional. Why do I think this? There are three reasons.

First, as Alexander Hamilton candidly admitted in The Federalist Papers, the Constitution does not even directly establish that courts have the power to make definitive declarations regarding the Constitution's meaning.

"[T]here is," Hamilton wrote in Federalist 81, "not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State."

Hamilton believed judicial review was implied even if not explicitly provided. But that doesn't mean judges are the only actors empowered to interpret the Constitution's meaning. A better view is actors in each branch of government—all of whom have taken the same oath to "support and defend" the Constitution—have a duty to interpret the meaning of the Constitution and to act, in discharging their duties, in accordance with that interpretation. Hamilton suggests as much in Federalist 81, where he wrote of the Supreme Court's "total incapacity to support its usurpations by force."

Hamilton argued the court's utter dependence on the executive branch to enforce its judgments meant the court was no real threat to liberty. But for that argument to make sense it must also be true that, at least in cases where a court ruling provokes some disquiet, the president will make an independent assessment before enforcing it.

If the President were required to enforce the court's every order, and without independent assessment of its fidelity to the Constitution, he would effectively be dragooned into enforcing even the court's "usurpations." That would make the court every bit as dangerous as Hamilton's Anti-Federalist antagonists feared it to be.

Arch anti-Federalist Thomas Jefferson, for his part, derided the idea that judges were "ultimate arbiters of all constitutional questions." This was, to Jefferson, "a very dangerous doctrine, indeed, and one which would place us under the despotism of an oligarchy." The Constitution "has erected no such single tribunal," and the plan of government, Jefferson wrote, admitted no supremacy in judges:

"My construction of the Constitution is … that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

Enforcement of court judgments is an executive act, not a judicial one. And in carrying out his duties, the president, Jefferson argued, must decide for himself what the Constitution requires. Which means that a president may decline to enforce a court order that he or she independently concludes is unconstitutional.

The second reason presidents are free under the Constitution to decline to enforce any order of the Supreme Court that he or she believes to be unconstitutional is history provides examples of presidents declining to enforce Supreme Court orders.

In 1832, the Supreme Court in Worcester v. Georgia struck down a Georgia criminal statute prohibiting non-native Americans from residing on Native American lands without a license from the state. Only the federal government, the court held, had the power to regulate tribal lands. The court's ruling ordered the release of two missionaries imprisoned under the statute, but Georgia's courts refused to order the release, and President Andrew Jackson declined to enforce the Supreme Court's order on the recalcitrant state. Writing two decades later, journalist Horace Greeley quoted Jackson (probably apocryphally) giving the court's order the back of his hand: "[Chief Justice] John Marshall has made his decision; now let him enforce it." The order was never enforced. A year after the court's decision, Georgia repealed the law and the two men were pardoned by Georgia's governor and released from jail.

Then there is President Lincoln's defiance of Chief Justice Taney's 1861 order in Ex Parte Merryman. That Civil War-era case involved a Maryland secessionist arrested in connection with attacks on federal troops in Baltimore and imprisoned in Fort McHenry. Shortly before Merryman's arrest, Lincoln had suspended the writ of habeas corpus between Washington, D.C., and Philadelphia in a bid to allow federal troops to quell secessionist rioting without judicial interference. Days after Merryman's arrest, Taney issued an order stating that Lincoln lacked the power to suspend the writ; the Constitution, Taney held, permitted suspension only by Congress.

Lincoln ignored the order. In a message to the Congress he made clear his view that the president had his own responsibility to act according to the powers that he independently understood the Constitution to provide him:

"The provision of the Constitution that 'the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it' is equivalent to a provision—is a provision—that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion."

Third, there is the matter of America's current reality. In normal politics, it makes sense for presidents (and for Congress) to cede to the court's final authority to interpret the Constitution's meaning. The ordinary expectation, whether a Democrat or a Republican, is that you'll win some at the court and you'll lose some—and that's OK because there is value in finality, especially if the court is seen as an institution that is doing something more principled than simply imposing its own political preference. But these are not normal times. This is not a normal Supreme Court.

That was the point of my tweet: at some point, the perception that the court is doing politics and not law may lead to a political response. We see that already in proposals to limit judicial terms, to impose Supreme Court supermajority voting requirements, to strip courts' jurisdiction, and, most prominently, to pack the Supreme Court.

But perhaps the simplest way for Biden to push back against a right-wing Supreme Court is to follow his own oath to uphold the Constitution and refuse to enforce Supreme Court orders that he concludes fail to do so.

So imagine that California Governor Gavin Newsom decided to ignore the court's order and continued to enforce public health laws as written without religious exemption. What would happen? Would Biden send in federal troops to enforce the court's order? Or would he give California the same room to defy the court that Jackson gave Georgia in 1832? To me, it's at least imaginable that if California pushed back, Biden would have allowed California to enforce its law over the Court's order.

The covid vaccine means the crisis passed quickly enough that the court's order soon lost its practical public-health significance. But that was happenstance. Which means we may soon see another opportunity for politicians to test the limits of judicial power.

These key defects in the Constitution threaten democracy — because we ignored the warnings

To the extent that Americans are aware of them at all, the Anti-Federalists are remembered as a band of vaguely disreputable second-raters who failed to prevent the 1788 ratification of the US Constitution—a document that for many Americans has become, over the past two centuries, something approaching a divine instrument.

But now, at a moment when so many of the Constitution's vaunted democratic safeguards seem to be breaking down, the Anti-Federalists' legacy may be due for a more respectful reassessment. As a matter of fact, the Anti-Federalists deserve credit for seeing the future quite clearly, and for perceiving, long before the rest of us could, some of the Constitution's most dangerous latent defects. So what did the Anti-Federalists believe? And what led them to oppose the Constitution's ratification?

Anti-Federalist thinking was complex, and Anti-Federalists disagreed with one another on many specific policy questions. Indeed, their fractiousness explains, in part, why they failed to defeat the Constitution. But at the core of Anti-Federalism was a coherent set of beliefs about human nature, the promise and peril of democracy, and how to design democratic institutions. The late, great political theorist Wilson Carey McWilliams summed up the Anti-Federalists' fundamental beliefs this way:

"The Anti-Federalists began with the conviction, axiomatic in traditional political science, that the measure of a republic is the public spirit of its citizens. The grounds for this view are simple and probably unanswerable: a republic is self-governing only to the extent that laws are enforced by citizens as well as made by them. Self-rule includes rule over the self. Members of a society are not fully autonomous if they are compelled by others to obey the law. Republican excellence [that is, small "r" republican excellence], therefore, requires strong assent, a commitment to abide by the law, and submitting one's conduct to a common rule."

The Anti-Federalists believed that democratic government depended on the virtue of individual citizens and—strange as this may sound to us—that government must be designed to foster that virtue, by creating the "public happiness" that grows out of citizens having an intimate connection to self-government as a collective enterprise.

Public happiness is what Thomas Jefferson refers to in the Declaration of Independence when he declared that government is instituted to secure our rights to "Life, Liberty, and the pursuit of Happiness." This is not the same as personal satisfaction—indeed, public happiness requires citizens to subordinate their personal satisfaction to the public good (or, in ideal circumstances, to merge the two).

Because democracy both depended on and created this sort of public engagement, the Anti-Federalist model insisted that as many decisions as possible must be pushed out from the center to the states. Only in those smaller, more homogeneous communities, the Anti-Federalists argued, can individuals meaningfully participate in public debate, directly experience the benefits of legislating in the common good, and feel the ties of affection to fellow citizens that undergirds public happiness. (Note that though the Anti-Federalists were localists, they nevertheless were not tied to the classical model of the Greek city-state. They understood that modern life required greater scale.)

By contrast, the Federalists were far more skeptical about democracy leaning heavily on the virtue of the mass of citizens. "A dependence on the people," James Madison wrote in Federalist No. 51, "is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

The Federalists imagined democracy for a large, diverse and fractious America in which citizens engaged with the public interest only occasionally and more likely acted according to their grubby private interests than some noble conception of the public good. The Federalists aimed to fit democracy to these hostile conditions.

The key innovation, laid out in Federalist No. 10, was the view that Anti-Federalist localism was upside-down. Only a large, diverse republic, Madison said, could "break and control the power of faction," by which he meant a private or group interest inconsistent with the public good. First, in an extended republic, Madison wrote, it would simply be more difficult for a faction to gain enough leverage to dictate policy:

"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution."

Madison acknowledged that scale was not a complete answer. Factional interest may gain majority support even in a large country. In that instance, the Federalists relied not upon the virtue of citizens, but of their representatives. Because representatives in a large republic are chosen by a larger and more diverse body of citizens, the results of elections, Madison wrote, "are more likely to centre in men who possess the most attractive merit and the most diffusive and established characters." Once in office, these men will act "to refine and enlarge the public views," blunting factional proposals "by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."

So the Federalists relied heavily on deliberation by national elites. They downplayed citizen virtue in favor of elite virtue. The Anti-Federalists objected furiously. They saw the Federalists as centralizing power, removing virtue from politics, elevating representatives as a sort of aristocracy, and, ultimately, as setting loose the power of self-interest which inevitably, they feared, would usher in tyranny and corruption.

None of this is to deny that the Anti-Federalists had their blind spots; it's difficult to imagine that their program of localism and citizen virtue could possibly have worked in a country as large and individualistic as America. And yet in light of what we've all witnessed, who can say now that the Anti-Federalists didn't, in general, see the defects of the Federalist project more clearly than the Federalists who defeated them?

The Anti-Federalists feared that the national government would wax in power at the expense of the states. They were correct. They feared that future presidents would make claims to monarchical power. They were again correct. The Anti-Federalists feared that the legislature would become oligarchic. Today's United States Congress, comprised of a majority of millionaires, bears the Anti-Federalists out on this one, too.

The Anti-Federalists were perhaps most prescient, however, in predicting how the United States Supreme Court would become glutted with power—to the point where we risked, in the view of the Anti-Federalists, becoming a nation ruled by judges.

The Federalists believed the federal courts were, in Hamilton's words, the "least dangerous" branch. He argued in Federalist No. 78 that we had little to fear from courts, because they were powerless relative to the president and the Congress:

"The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

But the Anti-Federalists understood the likely role of the Supreme Court—the only court established in the Constitution—very differently. Those views are best summed up by the Anti-Federalist "Brutus," who, in the months prior to the Constitution's ratification, wrote a series of editorials in a New York newspaper detailing his fears that the Supreme Court would exercise essentially unreviewable power:

"[T]he supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible."

Unlike in England, Brutus wrote, where rulings are subject to correction by Parliament, under the proposed Constitution the courts are subject to no check:

"There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will, generally, soon feel themselves independent of heaven itself."

And also unlike in England, where courts claim no power to set aside democratically-enacted laws, Brutus predicted that the Supreme Court would insert itself into lawmaking by striking down legislation:

"The supreme court then, have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and, therefore, in this respect their power is superior to that of the legislature."

And finally, Brutus predicted that the Constitution's vague text wouldn't constrain the Supreme Court's power, but rather further expand it. Most of the Constitution's articles, he wrote, and especially the most important ones, "are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold their meaning." The Supreme Court would feel little constraint from "any fixed or established rules, but would determine, according to what appears to them the reason and the spirit of the constitution." Brutus expected the Court would take every opportunity to expand its power to control the Constitution's meaning:

"Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpared to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority."

"This power in the judicial," Brutus concluded, "will enable them to mould the government, into almost any shape they please."

Brutus's Anti-Federalist account of the Supreme Court has proven far more accurate than Hamilton's conviction that the Court would act with "neither FORCE nor WILL, but merely judgment." The Anti-Federalists were correct in anticipating that the Constitution's oracular text would license the Supreme Court to make political judgments, cloaked (barely) in the language of law. They were correct in anticipating there would be no possibility of democratic recourse in most instances—even where the Supreme Court exercised its great "latitude of interpretation" to issue deeply unpopular decrees. And the Anti-Federalists were prescient in predicting the Supreme Court would refuse to be constrained by "any fixed or established rules."

We saw an example of that when the court reversed course after decades of First Amendment Free Exercise precedent, introducing a new formula for deciding those cases—one more favorable to claims that religious organizations should be exempt from generally-applicable laws and regulations. The court did so not in the context of a case on its regular docket, but in a "shadow docket" case decided outside the court's normal procedure and with minimal briefing and no oral argument. In so holding, the court broke its own rules, which bar changing the law in a shadow docket decision. But who is going to hold the court accountable? The Anti-Federalists knew. No one.

Unfortunately, the Anti-Federalists did not anticipate all the harm that would eventually be done by our imperial Supreme Court. Most importantly, they did not predict that a political party would attempt, as Republicans did under Donald Trump and will do again the next time a Republican occupies the White House, to harness the Supreme Court's overweening power for partisan political ends. Republicans have built their recent political strategy around stocking the federal bench with right-wing judges. And they've done this with a greater goal in mind. The party can effectively stay in power even if it can't win. The furious energy with which Trump, Mitch McConnell, and the Federalist Society worked to elevate partisan conservatives—by far the most consequential achievement of Trump's presidency—is all about frustrating the ability of the Democrats to do much with power once they have it.

That said, the Anti-Federalists' lesson for us is that the problems with the Supreme Court are much deeper than the politics of the moment. It's not just that the justices are too conservative or too liberal. It's that they are too powerful. That is why the Americans need to be looking back to the Anti-Federalists for ideas about how to shrink the power of the Supreme Court. Recent proposals have focused mostly on shifting the Court's composition through court packing and the introduction of judicial term limits. But the Anti-Federalists would have wanted a deeper reform. One that is focused not on who sits on the court but on creating accountability for it.

There is such a mechanism—one that the Federalists wrote into the Constitution itself but the implications of which the Anti-Federalists, unfortunately, failed to apprehend. Article III gives Congress power to strip jurisdiction: a power that can be employed to rein in politicized courts and even override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.

The implications of Article III power are potentially profound. Congress's power over courts' jurisdiction means that it can reclaim from an unaccountable Supreme Court authority to interpret the Constitution in particular cases. It would give us, in other words, some of the accountability that the Anti-Federalists warned we lacked.

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