Federalist 80
How do you resolve a conflict between two parties? No man is allowed to be a judge in his own cause, as the saying goes, and as Hamilton repeats in Federalist 80, so you need an independent party who has no interest or prejudice in the case to operate as a neutral referee. This third party should ascertain all the relevant facts, weigh the evidence and consider the arguments, and reach a decision grounded in reason and experience, producing a just outcome. Both parties to the controversy must accept the legitimacy of that third party’s decision regardless of how badly it rubs against their own interests. That legitimacy results, in turn, from confidence in the process as well as mechanisms of accountability for those rendering the decision. It’s not as if judges are incorruptible or infallible.
It’s not always easy to find a third party, however. In normal civil or criminal conflicts we appoint or elect judges to play that role; they are typically obliged to resolve the conflicts between citizens. What if the jurisdiction the judge serves is one of the parties to the conflict? Can we then trust the judge to be a completely “neutral” party?
What if the conflicting parties are themselves two sovereign powers, such as if the US and Canada would engage in a legal battle with each other? Or what if a citizen of Canada and a citizen of the US are taking each other to court? Or a citizen of Canada wanted to sue the government of the US – where would she do that? Could you get a fair and impartial hearing if one of the sovereign powers controls the court system that oversees such conflicts?
Furthermore, what role does this judicial apparatus play in a democratic society, where all political power must ultimately be exercised with the consent of the governed? How do you ground the exercise of judicial power in popular sovereignty unless it be via the jury system or tied directly to the system of representation? If the latter, what sort of authority should the elected branches exercise over the judiciary?
Under The Articles of Confederation conflicts between the states fell under the authority of the legislative branch. The aggrieved state would present its petition of grievance to Congress, who would notify the authorities of the other state that the filing had occurred, and the two states would “appoint by joint consent” a panel of judges to hear the case. If they could not agree on these judges then the Congress “would name three persons out of each of the united states, and from the list of such person each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen,” at which point the final judges would be determined by drawing lots.
Already in 1775 Jefferson had complained at a meeting of the Continental Congress that Parliament had “extended the powers of the courts beyond their ancient limits,” thus severing the courts from their popular base. Granted, the courts would have to play an anti-majoritarian role, but judicial independence was never meant to be oligarchic. Allowing the federal Court to determine the facts in the case, Luther Martin argued, would sever the court system from the jury system. The Convention debates over Article III were wide-ranging, including a Gouverneur Morris’s proposal that would have the Chief Justice serve an advisory role to the President, and “who shall from time to time recommend such alterations of and additions to the laws of the US as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union.” What could go wrong?
Hamilton had, in Federalist 78, insisted that judges both would be and had to be persons of sound character. “Federal Farmer” worried that judges would not be above all normal human fallibilities and foibles: “It is an observation of an approved writer, that judicial power is of such a nature, that when we have ascertained and fixed its limits, with all the caution and precision we can, it will yet be formidable, somewhat arbitrary and despotic--that is, after all our cares, we must leave a vast deal to the discretion and interpretation--to the wisdom, integrity, and politics of the judges--These men, such is the state even of the best laws, may do wrong, perhaps, in a thousand cases, sometimes with, and sometimes without design, yet it may be impracticable to convict them of misconduct. These considerations shew, how cautious a free people ought to be in forming this, as well as the other branches of their government, especially when connected with other considerations equally deserving of notice and attention.”
Given the complexity of judicial renderings it would be more difficult for a people zealous of their liberties to act as watchdogs over the judiciary. Bad laws excite alarm, but bad judicial proceedings often go unnoticed. For that reason, “Federal Farmer” worried, “we are more in danger of sowing the seeds of arbitrary government in this department than in any other.” Disconnected from the people and the legislature, it would become difficult to correct any of the Court’s abuses of power. In his 13th essay, “Brutus” argued that the economic consequences of allowing citizens of one state to sue another state would further weaken the states. His arguments there foresee the case of Chisolm v Georgia, which ultimately led to the ratification of the 11th amendment. More on that next week.
I want to draw attention to a particular part of Brutus’s 11th essay; namely, his admission that he didn’t quite understand what the clause in question is saying. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” What is the difference, he asked, between “under this Constitution” and “the Laws of the United States,” and what difference would the answer make in terms of the Court’s operations? Brutus realized this meant the Court would decide all cases that involved the construction, or interpretation, of the Constitution. What rule for interpretation might the Court use, he wondered. “According to this mode of construction, the courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety.” Under the rule of equity, however, the court would be able “to explain the constitution according to reasoning spirit of it, without being confined to the words or letter.” The result, he ruefully observed, would be that “in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.”
Hamilton’s argument in Federalist 80 largely bypassed concerns about the potential abuses of judicial power. After all, he had already identified it as the least dangerous branch. But he believed that the court played an essential role in establishing peace and harmony among the states. Hamilton took as the essential premise of the constitutional system “that the peace of the WHOLE ought not to be left at the disposal of a PART.” But this elides, in many ways, the question of justice itself, especially if one attends carefully to the relationship between justice and liberty, for any individual citizen is always part of a larger community and that citizen’s rights cannot simply be left to the discretion of those attending to “the peace of the whole.”
Nor would the autonomy of local communities be safe from such a construction. The push of Hamilton’s thinking, in this as in all things, was toward uniformity. “The mere necessity of uniformity in the interpretation of the national laws,” he wrote, “decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.”
Brutus and Federal Farmer worried that the authority of the federal judiciary would become a mechanism for further attenuating the states, and Hamilton gave them every reason to worry about this. The Court’s power, Hamilton argued, was “essential to the peace of the Union.” Tellingly, Hamilton resorted to an imperial example to make the point. “History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire.” Maximilian’s imperial designs were capacious, and while the Imperial Chamber he established did have some success in preventing violent skirmishes it ultimately collapsed under the divisions unleashed by the Protestant Reformation. But in any case it was a serious effort to centralize authority and engage in what we now call nation-building.
Were the national courts simply to act as an arbiter between two states, or citizens of two states, there would likely be no issue. Brutus conceded as much. As I said, you need to have an independent third party. Hamilton argued that the federal court system would eliminate all noxious biases from political conflict: “To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.” [Emphasis added.]
The situation becomes complicated when the United States government is one of the parties to the dispute. In that case, how would you expect the Court to be neutral? Wouldn’t it always take the side of the government it represents? What accountability could be created under those circumstances?
This is one reason why many Anti-federalists saw the court system as one more effort to undermine if not undo the authority of the states. Hamilton, in 80, referred to those who defended the interests of their states as “bigoted idolizers” who rejected the benefits of “the perfection of the system.” Critics were not easily cowed, however. Because of their ability to exercise some popular control over the conduct of judges, the state courts, Federal Farmer believed, were “bottomed on better principles” and thus able “to administer justice better than the federal courts.”
No doubt there were instances, especially territorial disputes, where some sort of independent judicial rendering was required. After all, the reason Maximilian I instituted the Imperial Chamber was to prevent violence over territorial disputes. Even then, however, the Chamber operated more like the system under the Articles of Confederation then it did like the one under Article III. How to control the Court’s adjudications has proved to be a continuously nettlesome problem in the system.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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