Federalist 78
Federalist #78, along with #10 and #51, are the best-known and most reprinted of the 85 essays in The Federalist (yes, dear reader, we are getting closer to the end, although I must beg your patience because this essay will be a two-parter). In it, Hamilton turned his attention to the federal judiciary, which he regarded as “the least dangerous branch” of government, the least likely to infringe on the people’s liberties and the least able to abuse what (little) power it had. In this essay I’ll review Hamilton’s arguments in #78 and next week I’ll look at the arguments made by critics of Article III.
I’ll divide Hamilton’s argument into three distinct but related parts: the power of the court, the need for an independent judiciary, and the matter of constitutional interpretation. Article III is the shortest of the three articles creating the three branches of government. The mode of appointment having been covered in Article II, section one simply deals with tenure in office. I note that the article nowhere discusses qualifications and one need not be a lawyer in order to sit on the bench; many justices did not have law degrees, although they did typically study law. There is no constitutional reason why a president couldn’t nominate someone who never studied the law, although that would be indeed a strange thing. Hamilton asserted in #78 that the “folly and wickedness of mankind” would result in so many legal restrictions that the law would “unavoidably swell to a very considerable bulk,” demanding “long and laborious study to acquire a competent knowledge of them.” Some leisure required.
Needing no qualification to become a justice, the only qualification for remaining one would be “during good behavior,” typically meaning the justice hasn’t engaged in any criminal activity or proceeded on the basis of a severe conflict of interest. Likewise, the section stipulates that neither the president nor the Congress can cut a justice’s salary as a way of punishing the justice.
Section 2
Section 2 spells out the jurisdiction of the Supreme Court of the United States (SCOTUS) that extends to all cases arising under law and equity (that constantly misused and abused word that far too many people regard as a desirable substitute for or synonym of “equality”). The court possesses original jurisdiction (they would be the first to hear the case) “in all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Otherwise the court would exercise appellate jurisdiction – another court would hear the case and then the court would review it on appeal. By far the most cases which the Court hears result from their appellate jurisdiction. Note also: by limiting the court’s power to cases (or controversies) only, Article III makes it impossible for the Court to offer advice to the other branches. The Canadian Supreme Court, for example, can hear “references” when asked whether legislation or proposed legislation is constitutional. The US Court can only weigh in if it has an actual case at hand, meaning that someone has experienced some kind of harm.
Section 3
Section 3 simply deals with how treason was to be handled. Note what is not in Article III: The power of judicial review. The issue of judicial review – that is, the ability of the court to rule a law unconstitutional – certainly received discussion at the convention (more anon). Most state constitutions explicitly gave their courts this authority, so it seems strange that the constitution did not spell out the nature and limits of the Court’s power. As it turned out, the power was granted to the Court to itself in the case of Marbury v. Madison.
Hamilton made it clear in #78, however, that he expected the court to have that authority. The court is that entity “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” The obvious problem is that this sets the court’s determinations of constitutionality against that of both the legislature and the president. The congress is supposed to be able to restrain itself constitutionally, never passing a law without ascertaining a specific constitutional warrant for it. We know, of course, that this proved an absurd expectation. Likewise, the presidential veto was to be wielded as a constitutional provision, the president stepping in when he thought congress had exceeded its authority (as Madison did with the internal improvements act and the heroic Grover Cleveland did multiple times, most dramatically with the Texas Seed Bill).
If the court can strike down acts of the legislature, the thinking goes, then the court has set itself up above the legislature as a higher authority, and if this were the case then Hamilton’s claim that the court was the least dangerous branch rings hollow. Hamilton’s contention rested on the fact that the court “had neither force nor will,” and having no influence “over either the sword or the purse” had no coercive power. It could render judgments but could not enforce them. The legislature needed checks and balances, a series of controls placed on it; the court would need no such restraints. As a result, when either the legislature or the executive disagree with a decision of the court they have no proportional responses available to them. Their only options seem to be either impeachment or ignoring the court’s order, but of which are fairly nuclear options. This is one reason why the appointment of justices has become so fraught because members of the executive and legislative branches hope they can use that process to get a court friendly enough to them that they never have to consider extreme measures.
Interpreting the Constitution
Hamilton elided the problem by suggesting that the court was not setting the legislature up against itself but was instead measuring legislative acts against the Constitution. “There is no position which depends on clearer principles,” he wrote, “than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” Since the legislative branch was the one most likely to step outside its appointed bounds the court had a distinctive restraining role to play, and this meant that the court had to have a monopoly on interpreting both the legislation and the text of the constitution. “The interpretation of the laws is the proper and peculiar province of the courts.”
This gets us into the tricky world of constitutional interpretation. The constitution is full of vague expressions, ambiguities, and indeterminate meanings. Why use “necessary” in Article I section 8 and then say “absolutely necessary” in Article I section 10? Are we to believe there are different levels of necessity? Did the Committee on Style simply drop the ball? At the same time, these words must mean something, and unless we have a hermeneutic that helps us discern the meaning the document becomes a nullity altogether. We can, Humpty-Dumpty like, make the document mean whatever we want it to mean, just as we need it to suit our purposes. If that’s the case then we don’t have a constitution at all. Even Hamilton realized that.
In his recent book The Pursuit of Liberty, Jeffrey Rosen, CEO Emeritus of the National Constitution Center, revisits the Hamilton-Jefferson debate. He makes it clear over the course of the book that he has little patience for what is (often pejoratively) referred to as “Originalism,” generally understood as divining meaning by referring words to the way they would have been understood by the public at the time of their expression. I’m not unsympathetic to criticisms of originalism, but I have yet to find a critic who offers a compelling alternative hermeneutic.
If we start with the assumption (and not everyone does) that words carry meaning and that our job as interpreters is first and foremost to understand that meaning (before we can start to criticize it), then we have some sort of obligation not to make the author(s) say something he didn’t say nor to simply dismiss something he did. Good interpretation is not easy. One must have an advanced facility with language, a decent grasp of history, a good imagination, a grasp of form, and so forth. Try reading a poem such as Emily Dickinson’s “A Route of Evanescence.” It’s not easy to grasp in its reference (how long did it take you to realize she was talking about a hummingbird?), harder still to grasp in its significance (Why did she write this? Why do we regard it as artful poetry?), and still harder to divine its meaning (What does this poem reveal about the world around us and our place in it?). All efforts at interpretation are efforts to tease out meaning from elusive sources, but the difficulty of the task is no reason not to attempt it. And anyone who has read a really good novel or poem more than once can tell you that discerning meaning is elusive and fitful, but also epiphanous. We experience genuine excitement when we “grasp” something’s meaning.
What Does Meaning Mean?
Meaning gets generated in the interactions between us and the work we are surveying. I had read Emily Dickinson’s “After Great Pain, A Formal Feeling Comes,” but the poem meant something quite different and more profound to me when I read it again after my mother died. What had before been provocative now became consoling, in part because it explained to me what I had been experiencing in a way that I couldn’t explain myself. She revealed something about the world and my place in it and gave expression to the loss I was feeling. I still don’t fully understand the poem, although I’m getting there the more I read it, but I’ll tell you what the poem is not about: it’s not about a trip to the circus, or space exploration, or how to eat Oreo cookies (always separate halves and eat filling first), or about the designated hitter rule. Any effort to make the poem say something like that would violate it and be intellectually dishonest to boot.
Words carry meaning and even if that meaning is elusive that doesn’t mean we can say whatever we want about those words. The judge has an important task: to give those words a kind of authoritative meaning that not only connects to public order but helps sustain that order, and repeated reinterpretations will necessarily destabilize that order. Legal interpretation results in rulings that favor some and not others, and thus occupies a unique and important role. If not “original public meaning,” then what way of determining meaning might we offer instead? I think Hamilton hinted at one possibility: Suppose, he said, you have two contradictory laws that somehow have to be reconciled. How do you do this? Hamilton suggested that the court had to “liquidate” the meaning of the statutes, thus allowing them to operate in tandem. I think he meant by that that the court was allowed to change the meaning to suit its purposes. The meaning would change with the circumstances in which interpretation takes place. Madison had suggested much the same thing in Federalist #37 when he wrote that “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of discussions and adjudications.”
Liquidating meaning can become a half measure toward evaporating it altogether. Granted, constant refinement and fresh eyes, as well as changing circumstances, can help illuminate what was hidden and correct what was false. What it can’t do is make something say something it doesn’t, not say something it plainly does, or introduce things into the text that are not there. Nor can it completely ignore the relationship of a particular text to its context: the constitution constitutes a government, but a limited government with many constraints on it. Any interpretation that “liquidates” those restraints ought to be immediately suspect.
Using Interpretations
When we interpret any work we often do so using other interpretations as guides. Sometimes they lead us astray, and sometimes they partake too much of the prejudices and values of the interpreter, but we approach a work not de novo but with reference to its history of interpretation. As Hamilton pointed out, knowing precedent and how to apply it is an essential part of statutory and constitutional interpretation and an important mechanism for controlling judicial willfulness.
Too often people assess court cases simply on whether they liked the outcome. I’ll confess that when I read a court case I am generally indifferent to the outcome of the case. Did the justice use sound reasoning? Was precedent appropriately employed? Did the interpretation treat the constitutional text fairly? Were the legal issues clearly discerned? Were processes followed correctly? If so, then it seems to me a pretty good decision. I can think of a lot of cases where I think the court decided properly but I hated the outcome, as well as cases where I kind of liked the outcome but thought the court’s reasoning was all wrong. But how I feel about the outcome should not factor much into my assessment of the case itself. Nor should we fall victim to the temptation of thinking that if the court would just rule this way, or overrule a prior decision, then everything would be ok. Overruling Citizen’s United would not solve the campaign finance problem any more than overruling Roe solved the abortion one. You can liquidate reality only so much.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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