The Federalist was originally written in October 1787 to voice support for the ratification of the new Constitution. Besides the Constitution itself, few documents provide a clearer description of the proper governance of our country than The Federalist. In essay No. 78, Alexander Hamilton discusses the “independent spirit” of federal justices. He writes,
“The independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
The Supreme Court is principally tasked with protecting the rights of individuals. In order to do this effectively, justices must be impervious to fleeting political ideologies. They must maintain their “independent spirit,” both collectively and individually. The current Court has failed at doing this, most notably with their decisions in the cases of Citizens United v. FEC in January 2010 and Florence v. Board of Chosen Freeholders of County of Burlington in October 2011.
Many would argue that the Citizens United (a 5-4 vote) ruling ensures freedom of speech for all by removing campaign spending restrictions on corporations, unions, and other groups with big-spending capabilities. That notion is fundamentally misguided. Corporations are not the same as individuals and thus must not be treated as such. In his dissenting opinion, Justice John Paul Stevens explains that, “The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.” Now, as is already obvious in this presidential election, the voices of individuals will be drowned out by the deep pockets of PACs and Super PACs.
In Florence, the Court’s ruling (also a 5-4 decision) allows officials to strip search anyone arrested for any crime. To put this in perspective, if you are arrested for something as nominal as a traffic offense, the official making the arrest now has the right to order a strip search. This ruthlessly nullifies a provision in the Fourth Amendment which protects individuals “against unreasonable searches and seizures.”
This Supreme Court has broken with its long history – a history that began with (among other things) Alexander Hamilton’s writing in The Federalist – of protecting and preserving the rights and freedoms of individuals.