Federalist 81
Hamilton begins Federalist #81 with a lengthy quotation from an Anti-federalist critic of the judiciary. I don’t know exactly who he’s quoting — Brutus makes some similar arguments, as does Federal Farmer — but the critic worries about the Court’s interpretive power and the lack of sufficient checks upon it. Hamilton responds somewhat unexpectedly, walking back part of the argument that he made in Federalist #78 concerning the power of judicial review. In that essay Hamilton had vigorously defended the Court’s authority to declare acts of Congress (or the president) void should they conflict with the Constitution.
Hamilton attempted to defang his opponent by arguing, correctly, that “there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution.” True enough. Some critics worried about the fact that the power was not expressly granted in the Constitution, as it was in many state constitutions, which Hamilton also realized because he immediately pivoted his argument to take note of that fact.
He went further, weakly restating his argument from #78 admitting that “the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.” Hamilton again, however, counted on the character and training of the judges as well as the Court’s lack of force as insurance against it ever abusing power or acting willfully.
He would not have to wait long to be proven wrong. In 1823 Madison wrote to Jefferson: “I am not unaware that the Judiciary career has not corresponded with what was anticipated. At one period the Judges perverted the Bench of Justice into a rostrum for partizan harangues. And latterly the Court, by some of its decisions, still more by extrajudicial reasonings & dicta, has manifested a propensity to enlarge the general authority in derogation of the local, and to amplify its own jurisdiction, which has justly incurred the public censure.” As critics pointed out at the time, the Constitution does not interpret itself. “We have seen,” Brutus wrote, “that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.” Spirit and reason would prove very nebulous indeed.
Hamilton may have regarded concern about the Court abusing its power as a mere “phantom,” but Anti-federalists weren’t seeing things. Or, perhaps, they were seeing things all too clearly and wanted some sort of check placed on the Court’s interpretive powers, especially when it came to executing the laws. Where could that check be effectively placed, and how could it operate proportional to the violation? The justices would be holding lifetime appointments and Congress could only increase, not decrease, their salaries.
Abuses of judicial power, particularly at the end of the 18th century, would be harder to detect. As Federal Farmer said in his 15th letter:
When the legislature makes a bad law, or the first executive magistrates usurp upon the rights of the people, they discover the evil much sooner, than the abuses of power in the judicial department; the proceedings of which are far more intricate, complex, and out of their immediate view. A bad law immediately excites a general alarm; a bad judicial determination, though not less pernicious in its consequences, is immediately felt, probably, by a single individual only, and noticed only by his neighbours, and a few spectators in the court. In this country, we have been always jealous of the legislature, and especially the executive; but not always of the judiciary: but very few men attentively consider the essential parts of it, and its proceedings, as they tend to support or to destroy free government: only a few professional men are in a situation properly to do this; and it is often alledged, that instances have not frequently occurred, in which they have been found very alert watchmen in the cause of liberty, or in the cause of democratic republics.
Federal Farmer and Brutus both believed that some sort of counterweight had to be lodged in the legislature, giving Congress control over the courts, such as the House of Lords had in the British system. Hamilton vigorously disputed the idea in #81. First, the legislative body that passed bad laws to begin with would hardly be in a position to review and reject its own proceedings. They would not be likely to repair their own breaches.
Hamilton’s second argument dealt with what has long been a bug in our system: what if, instead of simply ruling on the Constitutionality of a legislative question, the Court deals with policy considerations instead? Will the Court use its power of review not to strike down things unconstitutional but policies five particular justices don’t like? One example would be Brown v. Board of Education, where Warren et. al. made very little effort to deal with segregation as a constitutional question but instead dealt with it almost exclusively as a policy question, eagerly citing social science research clerks had dug up. Another example is the Court’s striking down of Connecticut’s Comstock Laws in Griswold v. Connecticut. Just Hugo Black, piqued by the majority’s overturning a law simply because they didn’t like it, in his dissent sounded warnings very much like those given by Federal Farmer and Brutus. “If any broad, unlimited power to hold laws unconstitutional,” he wrote, “because they offend what this Court conceives to be the ‘[collective] conscience of our people’ is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court.” He ruefully added: “The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country.”
If Congress would use the Preamble as well as its implied powers to grant itself a blank check to rule on ”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” (Brutus), why would the Court not simply endorse and expand that power, as it did in NFIB v. Sebelius? This would make the very idea of a limited government nugatory, and would ultimately be a mechanism for further attenuating the sovereignty of state governments.
Hamilton advised us not to worry. “Particular misconstructions and contraventions of the will of the legislature may now and then happen,” he allowed, “but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” If justices on occasion misbehaved, Hamilton, insisted, the Constitution did provide a ready remedy: the impeachment power under Article II, section 4. Hamilton seemed to assume that Congress would use this power routinely, or at least often enough that the mere threat of it would operate as a restraint on the behavior of both executive officials and judges. He optimistically observed that “There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.” Perhaps it’s time to take Hamilton at his word.
Another significant aspect of Federalist #81 involved the creation of the “inferior tribunals” to the Supreme Court that would result in the sprawling federal court system. While critics worried that the appellate jurisdiction of the Supreme Court, working through the federal system, would further weaken the states but subverting the authority of state courts, Hamilton worried that state and local courts would manifest “a local spirit” that ought to “disqualify the local tribunals for the jurisdiction” of what were admittedly most capacious “national causes.”
Hamilton further argued here for the creation of the circuit court system, itself the source of later controversy since it wasn’t clear whether the justices sitting on the SCOTUS bench should also be allowed to ride circuit. It took some time to work out that detail, but John Jay had vigorously opposed that policy when it was enacted by the Judiciary Act of 1789.
Cecelia Kenyon famously called the Anti-federalists “men of little faith,” because they didn’t share some of Publius’s optimism that federal offices would be constantly staffed by men of good will and high character. Perhaps nowhere was their lack of faith more tested, and more justified, then when it came to the conduct of judges. Hamilton’s faith in the judiciary seemed to rub against the generally more sober view he had of human nature, particularly when it came to members of the legislature. The legislature has hardly been the “amiable sheepdog kept forever on a lion’s leash” that Louis Hartz bemoaned, but the absence of any leash on the judiciary has proved a pretty fatal flaw.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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