Brutus Warned in 1788 That Unelected Judges Would Swallow the States

The losers of the ratification debate have a habit of being right about the details. They lost the vote, they lost the argument as history tells it, and their essays were filed under "objections" in the textbooks. Then, over the next two centuries, a surprising number of their predictions came due like bonds nobody remembered buying.

The sharpest of those predictions came from a New York writer who signed his essays "Brutus." In a series published in the New York Journal between late 1787 and the spring of 1788, Brutus examined the proposed Constitution clause by clause. In essays XI through XV he turned to Article III, and what he saw there alarmed him more than anything else in the document. Federal judges, he said, would be independent of everyone, would read the Constitution by its "spirit," and would steadily enlarge national power at the expense of the states. Let's read him closely, set him beside Hamilton's answer in Federalist 78 and 81, and score his predictions honestly.

Who Brutus was and why he matters

We do not know for certain who Brutus was. The essays have often been attributed to Robert Yates, a New York judge who attended the Constitutional Convention and walked out of it, but the attribution has never been proved. The name itself was a signal: Brutus was the Roman who stood against Caesar's concentration of power.

What we do know is that Brutus was read. His essays circulated during the New York ratification fight, and Hamilton's papers on the judiciary, published as Federalists 78 through 83, answer the same objections Brutus raised, often point for point. If you want to understand why the Federalists defended the judiciary the way they did, you have to read the man they were answering. We cover his first essay, on the Necessary and Proper Clause, in Brutus No. 1 Predicted the Necessary and Proper Clause Would Swallow the States.

Essay XI: the judges will read the spirit, not the letter

Brutus opened his judicial essays, number XI, published January 31, 1788, with an observation that sounds startlingly modern. The federal courts, he argued, would have power to decide questions arising under the Constitution "in law and equity." Equity gave them room to depart from strict words. And so:

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.

Then came the conclusion that made the essay famous:

The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications.

And the stakes for the states:

the judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states.

Read those three passages together and you have a full theory. Equity jurisdiction lets judges escape the letter. Reading by the "spirit" lets them enlarge whatever powers the document grants. And because no one can correct them, each enlargement becomes permanent law. The process would be "silent and imperceptible": no coup, no proclamation, just a long series of reasonable-sounding opinions, each going a little further than the last.

Essays XII through XIV: the mechanisms

Brutus then explained how the enlargement would happen.

In essay XII he pointed to the broad phrases of the Constitution, the Preamble's promise to "promote the general Welfare" and the grant of power to make laws "necessary and proper," and argued that judges reading by the spirit would treat those phrases as sources of power rather than statements of purpose. A court that asks "what would serve the general welfare?" can find federal authority almost anywhere.

In essay XIII he took up the provision extending federal judicial power to controversies between a state and citizens of another state. Brutus argued that this would let individuals haul sovereign states into federal court to collect debts, an indignity to the states and a transfer of power to the national judiciary.

In essay XIV he attacked the Supreme Court's appellate jurisdiction "both as to Law and Fact," warning that it would allow the Court to second-guess facts found by juries and would drag litigants hundreds of miles to a distant capital, which only the wealthy could afford.

These were not vague fears. Each named a clause and a mechanism.

Essay XV: independent of heaven itself

In his last judicial essay, published in March 1788, Brutus delivered the passage for which he is best remembered. He compared the federal judges to English judges, whose decisions were subject to correction by the House of Lords as a court of last resort. Under the proposed Constitution, there was no such check. Judges could be removed only by impeachment, for crimes, not for errors. And so:

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.

That last sentence is not an argument about law. It is an argument about human nature, the same argument the Federalists themselves made everywhere else. Madison wrote in Federalist 51 that if men were angels, no government would be necessary. Brutus simply applied that insight to judges, and asked why the men in robes should be the one exception.

Hamilton's answer in Federalist 78 and 81

Hamilton's reply came in two installments, and it was strong.

In Federalist 78 he argued that the judiciary would be the weakest branch, having "neither FORCE nor WILL, but merely judgment," and that judicial review placed not the courts but the people's Constitution above the legislature. He conceded that judges might "substitute their own pleasure to the constitutional intentions of the legislature," but said that danger would exist under any system with judges. We read that paper line by line in Neither Force Nor Will, Hamilton's Federalist 78 Read Line by Line.

In Federalist 81 he answered Brutus more directly. To the charge that the courts would construe the laws according to the spirit of the Constitution, Hamilton replied:

there is 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.

He added that state constitutions gave state courts the same kind of authority. To the charge that no one could check the judges, he answered that impeachment was the check: the House could impeach and the Senate remove any judge who deliberately usurped legislative power. The supposed danger of judicial encroachment on the legislature, he concluded, "is in reality a phantom."

On Brutus's point about suits against states, Hamilton offered assurances in Federalist 81 that states could not be sued without their consent, because immunity from suit was "inherent in the nature of sovereignty."

So the debate was joined on clear terms. Brutus said judges would read by the spirit, enlarge national power and answer to no one. Hamilton said nothing in the text authorized reading by the spirit, impeachment was a sufficient check, and the danger was a phantom.

Scoring the predictions

Now the honest accounting. Let's take Brutus's predictions one at a time.

1. Suits against states. Correct, and fast. In Chisholm v. Georgia (1793), the Supreme Court held that a citizen of South Carolina could sue the State of Georgia in federal court, precisely the result Brutus predicted and Hamilton denied. The states answered with the 11th Amendment, ratified in 1795. Brutus was right about the reading; the people corrected the Court through Article V. That story is in Chisholm v. Georgia Lost in 1793 and the States Answered With the 11th Amendment.
2. Broad phrases as sources of power. Largely correct. In McCulloch v. Maryland (1819), Chief Justice Marshall read "necessary and proper" to mean convenient or useful rather than indispensable. Marshall's opinion has real limits, as we argue in McCulloch v. Maryland Opened a Door, and Marshall Swore It Had Walls, but its generous reading became the foundation for later expansions. In Wickard v. Filburn (1942), the Court held that a farmer growing wheat for his own animals affected interstate commerce. Brutus would not have been surprised.
3. Silent and imperceptible. Correct as to method. The growth of federal power through the courts came mostly by accumulation, each case resting on the last, rather than by a single dramatic ruling.
4. Impeachment as no real check. Correct. The House impeached Justice Samuel Chase in 1804, and the Senate acquitted him in 1805. Since then, no Supreme Court justice has been removed, and the norm hardened that judges are not impeached for their rulings. Hamilton's "complete security" turned out to be a check that is almost never used for the very abuse he named.
5. Judicial supremacy. Partly correct. In Cooper v. Aaron (1958), the Court declared its interpretation of the Fourteenth Amendment in Brown v. Board of Education "the supreme law of the land," binding on every state official. Abraham Lincoln, in his first inaugural address in 1861, had warned that if "the policy of the Government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," the people would "have ceased to be their own rulers." We weigh the distinction in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not.

Where Brutus was wrong

Fairness requires the other column.

First, Brutus assumed the judges would always push one way, toward national power. History is messier. The Court has also struck down federal overreach: in United States v. Lopez (1995) it held for the first time in decades that Congress had exceeded the commerce power, a case we discuss in United States v. Lopez Was the First Commerce Clause Limit Since the New Deal. In NFIB v. Sebelius (2012) a majority held that the individual mandate could not be sustained under the Commerce Clause. In West Virginia v. EPA (2022) and Loper Bright Enterprises v. Raimondo (2024), the Court reined in federal agencies.

Second, Brutus underestimated the people's power to correct the Court. Chisholm was reversed by amendment within two years. Dred Scott was overruled by the 13th and 14th Amendments. And Dobbs v. Jackson Women's Health Organization (2022) returned the abortion question to the states, as a judicial correction of a judicial error.

Third, Brutus thought the remedy was to make judges removable by the legislature, as in England. That cure would have created a different disease: judges who rule to please whichever majority holds Congress. Hamilton's insistence on independence has protected unpopular litigants and unpopular rights again and again.

The strongest objection, and the answer

The objection. Brutus was a pessimist making a case against ratification. Reading him as a prophet is hindsight. Every government grows, every court interprets, and the expansion of federal power came from Congress, the presidency, wars and depressions, not from judges alone. Blaming the courts is blaming the referee for the score.

The answer.

1. Brutus named mechanisms, not moods. He pointed to equity jurisdiction, the general phrases, suits against states and the absence of a correcting power. Those are exactly the doors through which much of the expansion came. A prediction tied to a mechanism is not hindsight when the mechanism works as described.
2. The referee approved the plays. Congress passed the laws, but courts decided whether they were within the enumerated powers. When the Court upheld nearly every assertion of commerce power between 1937 and 1995, it was not a bystander.
3. Hamilton's own standard proves the point. Federalist 78 condemned judges who exercise will instead of judgment. Brutus predicted judges would do exactly that. Where they did, both men would agree it was a breach.
4. The objection concedes the important thing. If the referee matters less, then the remedy for overreach lies with the people and their representatives, which is exactly where Brutus wanted it.

The verdict: Brutus was not right about everything. He was right enough, and specific enough, that every judge and every senator who votes on a judge should read him alongside Hamilton.

What it means now

The Brutus-Hamilton exchange is not a museum piece. It is the template for the modern debate over how judges should read the Constitution. Originalism and textualism are, in large part, a long answer to Brutus: an effort to bind judges to the letter so that the spirit cannot carry them wherever they wish. Hamilton insisted that judges must be "bound down by strict rules and precedents." Brutus doubted they would be. The way to prove Hamilton right is to hold judges to his standard.

The states, for their part, are not helpless. Through Article V they reversed Chisholm. Through their senators they shape who sits on the bench. Through their own courts, under their own constitutions, they decide most of the law that touches daily life. We explore the Anti-Federalist inheritance more broadly in Federalists Versus Anti-Federalists on Six Questions, Side by Side.

The case in brief

1. Brutus warned in 1788 that federal judges, reading the Constitution by its "spirit" and answerable to no one, would silently enlarge national power over the states.
2. Hamilton answered in Federalist 78 and 81 that nothing in the text authorized reading by the spirit and that impeachment was a sufficient check.
3. Brutus was proved right on suits against states (Chisholm, 1793), on the generous reading of broad clauses, and on impeachment as a check that is almost never used.
4. He was wrong that judges would only ever expand federal power, and wrong that legislative removal would be a safe cure.
5. The lasting lesson is Hamilton's standard enforced with Brutus's vigilance: judges bound to the text, and citizens who check that they are.

What you can do: read Brutus XI and XV and Federalist 81 side by side, then look up your senators on our scorecard and ask what questions about judicial method they put to the last judicial nominee they voted on.