Federalist 78 Part II
I have repeated throughout these essays that the idea of “dual sovereignty” has consistently confounded American federalism. To the Anti-federalists the “energy” and “stability” Publius consistently sought to transfer to the federal government necessarily redounded to the disadvantage of the state governments. One may consider power as a limited resource in politics: given to one it necessarily takes from another. The concentration of any government power, generally speaking, attenuates the strength of any individual or civil institution. Taking on additional functions necessarily means taking on additional authority, and thus weakening the functioning of more traditional institutions, subordinate governments, or even individuals themselves.
Article III’s threadbare creation of the federal judiciary may not have created an extensive court system but it created the conditions for one, and the possibility that the federal courts could usurp the authority of the state courts concerned critics greatly. The Anti-federalists insisted that “democratic” institutions operated best when they operated under principles of simplicity, transparency, accountability, and popular participation. They worried that, absent the Bill of Rights – which was indeed absent – that palladium of liberty, trial by jury, would be lost. “A jury of one’s peers” is indispensable to a fair administration of justice, and Luther Martin and Federal Farmer both identified the Supreme Court’s appellate power as a mechanism for bypassing the jury system, especially if the Court could independently determine matters of fact.
The ability of Congress to create “inferior tribunals” would lead, critics feared, to the creation of a federal court system that would stretch across the land, insinuating federal power deeper into the lives of individuals. Martin claimed that, when connected to Congress’s taxation power, as it ultimately must, judicial power would become a mechanism for undermining rather than protecting rights, especially since the Court would monopolize interpretive authority. “The construction of every law imposing any and all these taxes and duties,” he wrote, “are taken away from the courts of justice of the different States, and confined to the courts of the general government, there to be heard and determined by judges holding their offices under the appointment not of the States, but of the general government.” The result, he reflected in a passage both alarming and prescient, would be that federal tax officials would “go into your houses, your kitchens, your cellars, and to examine into your private concerns, the Congress may impose duties on every article of use or consumption, — on the food that we eat, on the liquors we drink [the unkindest cut of all for Martin], on the clothes that we wear, the glass which enlightens our houses, or the hearths necessary for our warmth and comfort.”
The Problem of the Preamble
Brutus foresaw that the mechanism for expansive interpretations of federal power would occur through the Court’s reading of the Preamble. Like Sam Adams, Brutus approached the threshold of the Constitution and trembled. The Preamble expressed the purposes of the Constitution, he argued, and thus what the Constitution would ultimately allow, specific prohibitions notwithstanding, because designing men would always figure out ways to massage the text. The Preamble thus embraced every object desired by any government, Brutus claimed, and since, as Hamilton consistently argued, the power of the federal government was to be exercised directly on all individuals and not on the states, the federal government would always disguise its exercises of power by insisting that it was doing good for the persons it was gradually turning from citizens into subjects. “The courts, therefore, will establish this as a principle in expounding the constitution, and will give every part of it such an explanation, as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.”
All Cases of Equity
The problem compounded when considering that the Court’s authority extended not only to all cases of law but also “equity.” This word has become so distorted in our contemporary context – most persons treating it as synonymous with or as a happy substitute for “equality” – that we can’t help but be confused by Article III’s reference to cases of equity. [For the record, I take the substitution to be anything but benign.]
In law and theory, “equity” refers to fairness and impartiality and was instituted under the common law by “equity courts,” whose job it was to provide legal remedies to specific cases where legal remedies were not extant or sufficient; as in, for example, a trademark infringement where simply awarding monetary damages wouldn’t be sufficient remedy but had to be accompanied by a cease-and-desist order. It didn’t operate according to strict legal rules or codes and it allowed flexibility in the application of principles of justice. It could not operate if it presumed guilt or innocence in advance by virtue of membership in a specific class. Furthermore, “equity” in its most common usage refers to “ownership,” a concept that seems to have little relationship to its academic usage. We are all trying to build “equity” and not equality in our houses.
Unlike “equality,” “equity” typically provides injunctions to act or not act in a particular manner. Put another way, it allows a plaintiff to compel action from those against whom the claim is made. It attempts to provide restitution for irreparable harms resulting from injurious acts. By demanding “equity” of citizens or workers their roles are redefined to “fix” “inequities” with the assumption that those so charged have either injured someone else or have been unjustly enriched. There is a claim of implicit guilt that must be rectified through compulsion to act, to bring relief to unjust situations outside the normal rule of law.
Equity courts had the power to operate where the law was vague or inadequate, remedying what the court considered an injustice. This could involve, for example, a surrendering of wealth unjustly acquired or prevention of unjust enrichment, and by extension to correct unjust impoverishment. This power was potentially so expansive that Jefferson sought restrictions that would provide strict rules for remedial actions and preserve impartiality against the tendency to administer justice according to the whims and interests of those in power. Setting judges free from the text of the common law and giving them “pretorian discretion” to “wander into its equity” rendered “the whole legal system” uncertain. Unleashing the power of equity from the general rule of law, in both its substance and procedure, would be to unleash “a monster whose existence should not be suffered one moment in a free country wherein every power is dangerous which is not bound up by general rules.”
Likewise, Hamilton noted in Federalist 83 that equity courts should operate only in “extraordinary” cases that deal with exceptions. Equitable relief could only be sought in circumstances where strict application of the law would lead to a result contrary to the intent of the law. Many Anti-federalist writers were concerned that the power of equity would be too easily abused, especially by the Supreme Court whose power in equity cases was enshrined in Article III, and sought to put strict limits on it. What would never have been possible, of course, would be to use the power of equity in situations where one’s own interests were at stake, no person being a judge in his own case being a central tenet of liberal theory. As Brutus observed about the Court’s power in equity cases:
By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter. ‘From this method of interpreting laws (says Blackstone) by the reason of them, arises what we call equity;’ which is thus defined by Grotius, ‘the correction of that, wherein the law, by reason of its universality, is deficient[‘]; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should some where be a power vested of defining those circumstances, which had they been foreseen the legislator would have expressed; and these are the cases, which according to Grotius, [‘]lex non exacte definit, sed arbitrio boni viri permittet.’ [“The law does not define exactly but leaves to the discretion of a good man”] The same learned author observes, ‘That equity, thus depending essentially upon each individual case, there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law.’
Willful Interpretation
There being no fixed principle, judicial interpretation becomes willful. Judges cannot rule in cases to which they are parties, but they are not shorn of interest or, more importantly still, ideology. “He who makes the judge’s hunches makes the law,” Jerome Frank once observed. The “values” of the judges can expand or contract federal power accordingly, along with the servicing of specific clients attached by interest to congressional and executive parties. The fair administration of justice gets corrupted by interest and passion … and money. Justices in the main hew to the idea of impartiality, but no one seems to believe the myth any longer, which is why confirmation battles are so heated. This becomes especially a problem when, as in our contemporary context, the idea of equity is used specifically and explicitly to treat impartiality as if it is a form of racism or sexism.
Hamilton’s insistence on an independent judiciary became a flash point. Anti-federalists allowed for something along the lines but also insisted that an independent judiciary could become so anti-democratic that it would operate as an oligarchy whose principals could never be unseated. Even Hamilton allowed that should the Court’s power ever connect to the other two branches that the potential for mischief abounded. The Court, Hamilton insisted in #78 posed no threat to liberty “so long as the judiciary remains truly distinct from both the legislature and the Executive.” Indeed, liberty itself “would have every thing to fear from [the Court’s] union with either of the other departments.” Hamilton acknowledged that the “feebleness” of the judiciary made it especially susceptible to “being overpowered, awed, or influenced by its co-ordinate branches.” His solution was permanency in office and, as I will show, the Anti-federalists correctly foresaw the problems there as well.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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