Suppose Joseph Story Had Been Right and Brutus Had Been Wrong

Brutus, one of the loose-knit group of Anti-Federalists who opposed the adoption of the Constitution, was convinced that the new government would prove to be a national, not a federal, government; that the several states would cease to exist as sovereign entities; and that the judiciary would be instrumental in causing that result. Joseph Story, a proponent of a strong judicial branch, believed that “the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress, or, in the last resort, of the amendatory power of the states, to redress the grievance.” Judge Alice Batchelder examines several key areas and concludes that Brutus, regrettably, was right and Story was wrong.

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