If you want to understand how the Supreme Court became the center of ideological extremism and corruption it is today under Chief Justice John Roberts, you have to return to its beginnings and examine the institution’s origin story. A useful starting point is the ratification debates of 1787 and 1788, now known as the Federalist and Anti-Federalist papers, in which the arguments for and against replacing the Articles of Confederation with a new national charter were laid out in detail.

This article originally appeared on Truthdig.

Of the 85 essays in the Federalist Papers, Alexander Hamilton wrote 51, while John Jay of New York and James Madison of Virginia wrote the rest. Hamilton was the strongest advocate for an independent federal judiciary armed with the power of “judicial review,” which would allow judges to declare acts of Congress and the executive unconstitutional.

Writing under the pseudonym “Publius,” Hamilton explained the principle in Federalist No. 78:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Hamilton recognized the risk of overreach, but he believed the judiciary would be “the least dangerous” of the Constitution’s three branches. Unlike Congress and the president, he argued, the courts would have “no influence over either the sword or purse,” but only “judgment,” and would therefore serve as impartial guardians of the Constitution. Put simply, his case was that judges could be trusted.

That was a novel and controversial idea then, and it remains disputed nearly 240 years later.

One of the earliest opponents was Robert Yates, a New York state judge and delegate to the 1787 Constitutional Convention. Yates feared that judicial review would lead to judicial supremacy, and historians consider him the likely author of several Anti-Federalist writings published under the name “Brutus.”

In Anti-Federalist essay No. 14, Brutus warned that under the new Constitution, the Supreme Court “would be exalted above all other power in the government, and subject to no control.” In No. 15, he wrote, in language that sounds strikingly current, that the Court would

[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. … Men placed in this situation will generally soon feel themselves independent of heaven itself.

Hamilton’s view prevailed, and judicial review became official doctrine in the landmark 1803 decision in Marbury v. Madison. But the victory came at a cost. It is difficult to imagine an independent court system without authority to invalidate legislative and executive acts, yet judicial review has proved to be a double-edged sword. At times, it has advanced democratic ideals, as in Brown v. Board of Education. At other times, it has been used to undermine those ideals, as in Dred Scott v. Sandford, Plessy v. Ferguson, and the decisions striking down key elements of the early New Deal.

That tension matters because once the Court claims the power to settle constitutional meaning, the stakes extend far beyond any single case. Under Roberts, the Supreme Court has used judicial review to move sharply to the right on multiple fronts: reinterpreting the Second Amendment to recognize an individual right to bear arms, weakening the legal foundations of union organizing, removing political gerrymandering from the jurisdiction of federal courts, allowing unlimited campaign spending by corporations and wealthy individual donors, overturning the right to abortion, granting the president immunity for official acts, and weakening the Voting Rights Act.

Hamilton was correct about the need for judicial independence, but his confidence that the president and Senate would choose and confirm only highly qualified judges proved badly mistaken. He lived long enough to see Supreme Court Justice Samuel Chase impeached by the House of Representatives in 1804, though he died in a duel with Aaron Burr before Chase’s acquittal in the Senate. He could scarcely have imagined a court dominated by a chief justice who has presented himself as an institutionalist committed to calling “balls and strikes,” alongside a bench described here as filled with grifters, ideologues, and political hacks. He also likely would have been surprised to see Roberts and his allies fulfill Brutus’ fears by presenting themselves as unaccountable arbiters who alone claim authority to determine the meaning of the Constitution.

The Roberts Court’s rollback of constitutional rights, the piece says, is deeply unpopular, as recent polling suggests the court faces a legitimacy crisis of its own making. That has renewed calls for structural reform, including term limits, limits on the court’s appellate jurisdiction, and expanding the bench to as many as 13 justices. But any of those changes would require Democrats to stiffen their spines, win back both chambers of Congress, and take the presidency. Even then, reform would be difficult and slow, especially because the Court’s current role is embedded in a legal culture that treats its word as final even when public confidence is fraying.

In the meantime, the article argues, constitutional interpretation needs an alternative to the “originalism” used by Roberts and his predecessors to help engineer the right’s takeover of the Supreme Court. One such alternative already exists: “popular constitutionalism.”

As described by legal scholar Larry Kramer in his 2004 book, The People Themselves: Popular Constitutionalism and Judicial Review, popular constitutionalism holds that “the people” — not as an abstraction, but as engaged citizens — are the ultimate source of constitutional meaning, rather than the nine unelected members of the Supreme Court. People may be legally bound by the Court’s rulings, but they still have the right to criticize them, advocate alternative interpretations, and work peacefully to reverse wrongly decided cases through voting, demonstrations, litigation, legislation, impeachment, constitutional amendments, and other means.

New York Times columnist Jamelle Bouie wrote in June:

Constitutional meaning deals with the shape and structure of our political community. And as much as courts help build our collective constitutional understanding, the question of meaning is as much the purview of the public as it is the job of a jurist. … It is only in the last half-century, in fact, that we have fully conflated legal decision-making with the production of constitutional meaning. The result … is a strong form of judicial supremacy, where the meaning of the Constitution and therefore the structure of our political community are fixed in place by the decisions of a small, cloistered and often self-interested tribunal.

Even Hamilton, the leading defender of judicial review, acknowledged in Federalist No. 78 that his vision for the courts “did not by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both. …”

The article points to several examples of popular constitutionalism in practice, including the ratification of the 13th, 14th, and 15th Amendments, the Civil Rights Acts of the 1950s and 1960s, and, more recently, the recognition of same-sex marriage.

This summer, Slate’s legal commentators launched a series of articles and podcasts called By the People to renew that tradition. The series examines the history of popular constitutionalism and offers guidance on citizen involvement. After a brief hiatus, it is set to resume in the fall, just as the Supreme Court begins another difficult term.

Meaningful change will take time, the piece concludes, but the political right spent decades organizing through groups such as the Federalist Society and promoting originalism before it managed to capture the Supreme Court. With that history in mind, the article says, reformers should prepare for a marathon rather than a sprint. Above all, they should be ready to win.