By Mitch Kokai
Noted American historian Gordon Wood wasn’t thinking about Moore v. Harper when he wrote his latest book. Yet the highly publicized N.C. redistricting case came to mind as this observer recently read Wood’s words.
The U.S. Supreme Court hears oral arguments Wednesday in Moore v. Harper. It’s a case dealing with North Carolina’s latest congressional district map. Justices will decide whether state courts overstepped their authority. State judges rejected two different congressional maps drawn by legislators after the latest census, then imposed a court-drawn map for the 2022 election cycle.
Wood focuses no attention on election maps or redistricting in his book “Power and Liberty: Constitutionalism in the American Revolution.” Published in 2021, the book aims instead to show how the revolutionary era led to fundamental changes in the way Americans thought about government power.
Though addressing debates and conflicts that occupied Americans’ attention more than 230 years ago, Wood still offers valuable insights for today’s political discourse. When contemplating Moore v. Harper, readers might find one chapter particularly interesting. It’s titled “The Emergence of the Judiciary.”
Prior to the American Revolution, Wood writes, American colonists had viewed judges largely as lower-level functionaries in government’s executive branch. “They especially feared the seemingly arbitrary discretionary authority that colonial judges had exercised.” In Thomas Jefferson’s words, spelled out in 1776, Americans viewed judicial activity as “the eccentric impulses of whimsical, capricious designing man.”
That attitude eventually changed. As people began to witness the work of popularly elected assemblies across the newly formed states, they started to view the judicial branch as a protector of minority rights, “important checks on the excesses of democracy.”
Still, few would have wanted to give judges the power to substitute their own political judgment for that of lawmakers.
“Even those who agreed that many of the laws passed by the state legislatures in the 1780s were unjust and even unconstitutional, nevertheless could not agree that judges ought to have the authority to declare such legislation void,” Wood wrote. “For judges to declare laws enacted by popularly elected legislatures as unconstitutional and invalid seemed flagrantly inconsistent with free popular government.”
Wood cites a North Carolinian, Richard Spraight, who labeled “such judicial usurpation” as absurd. It was the type of “absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Subjecting people to the “will of a few individuals in the court” would lead to a “despotism … more insufferable than that of the Roman decemvirate or of any monarchy in Europe.”
Another North Carolinian, James Iredell, wrote in 1786 about concerns linked to judicial power. “The great argument is,” Wood quotes Iredell, “that the Assembly have not a right to violate the constitution, yet if they in fact do so, the only remedy is, either by a humble petition that the law may be repealed, or a universal resistance of the people. But that in the meantime, their act, whatever it is, is to be obeyed as a law; for the judicial power is not to presume to question the power of an act of Assembly.”
Jefferson and his colleague James Madison “thought that judges might act as the guardians of popular rights and might resist encroachments on these rights, but they never believed that judges had any special or unique power to interpret the Constitution,” Wood wrote. “In fact, they remained convinced to the end of their lives that all parts of America’s governments had the authority to interpret the fundamental law of the constitution.”
Wood goes on to explain how views of judges’ authority changed during the decades that followed the American Revolution. Today, after more than 200 years of development of what came to be known as constitutional law, few would question courts’ authority to strike down laws that violate the nation’s governing document.
Yet concerns from the founding era still can help inform today’s debates.
In Moore v. Harper, state lawmakers criticize N.C. courts for using “abstract and broadly worded commands” within the state constitution to reject congressional maps approved through the legislative process.
Article I, Section 10’s declaration that “All elections shall be free” says nothing about rules for drawing election maps. Nor do state constitutional provisions protecting free speech and assembly and guaranteeing equal protection of the laws.
Yet the N.C. Supreme Court’s four Democratic justices, over the objections of three Republican colleagues, used such “vague constitutional provisions” to strike down a map drawn by GOP lawmakers. The Democratic justices endorsed a court-imposed map more favorable to Democratic candidates.
The state court “impose[d] its own policy determinations,” in lawmakers’ view.
It’s likely that we’ll have to wait until June to learn whether the U.S. Supreme Court agrees. But Gordon Wood’s “Power and Liberty” suggests our nation’s leading founders would have understood arguments against judicial overreach in this high-profile case.
Mitch Kokai is senior political analyst for the John Locke Foundation