Federalist 82
Continuing his examination of the judiciary in Federalist #82, Hamilton engaged one of the central concerns of critics as well as a complex feature of the system: the relationship between the federal and the state courts. Opponents of the Constitution were constantly on the lookout for the ways in which the proposed national government would subvert and ultimately subsume the sovereignty of the states. Obviously no plan that immediately robbed the states of their authority would be ratified by those very same states, so Anti-Federalists were alert to the subtle mechanisms embedded in the structure of the federal government that would ultimately weaken state power. Hamilton slyly referred to these as “questions of intricacy and nicety” that might “be expected to flow from a constitution founded upon the total or partial incorporation of a number of distinct sovereignties.” [Emphasis added.]
These intricacies were obvious when it came to legislative or executive power, but less so when it came to judicial power. Critics objected to the fact that Article III contained a good number of vague expressions but also left much of the judicial arrangements to be decided by Congress only after ratification took place. Hamilton even conceded the point but offered it as an argument in defense of the constitutional arrangement. In a vein similar to Madison in #38, Hamilton noted that “time only can mature and perfect so compound a system,” but skeptics argued that “time” alone was unlikely to be the agent of maturation; rather, the increased power of the federal government would decide such matters. Hamilton’s insistence that it would take time to “liquidate the meaning of all the parts” in order to “adjust them to each other in a harmonious and consistent WHOLE” made critics worry that more than just meaning was going to get liquidated. Any solid that gets liquidated soon gets evaporated.
Giving Congress the power to create “inferior courts” meant that Congress could not only vastly expand the federal court system but could also place that system in conflict with the state courts. Section 2 of Article III gave the federal courts original jurisdiction in state conflicts, those which, at the time, were decided in state courts. Since suits against a state had currently been resolved in state courts and Article III also gave that jurisdiction to federal courts, the two court systems would possess a “concurrent jurisdiction” over certain categories of cases.
Federal Farmer allowed that the power of the federal judiciary ought to extend to acts of the federal congress, but denied that the federal judiciary should have power over state laws. In Chisolm v Georgia (1793) the Court ruled that a state could be sued in federal court, leading to the creation and ratification of the somewhat confusing 11th Amendment. The exercise of federal judicial review over state laws was not asserted by the Court until the Gitlow case in 1925. Federal Farmer in his 3rd and 15th essays expressed two related worries: that the federal judiciary would be able to circumvent state laws, and that in the process would substitute the “politics of the judges” for the law-making authority of the people through their elected representatives. “As to all federal objects,” he wrote in his 18th essay,
the union will have complete jurisdiction over them, of course any where, and every where. I still think, that no actions ought to be allowed to be brought in the federal courts, between citizens of different states, at least, unless the cause be of very considerable importance: that no action against a state government, by any citizen or foreigner, ought to be allowed; and no action, in which a foreign subject is party, at least, unless it be of very considerable importance, ought to be instituted in the federal courts--I confess, I can see no reason whatever, for a foreigner, or for citizens of different states, carrying sixpenny causes into the federal courts; I think the state courts will be found by experience, to be bottomed on better principles, and to administer justice better than the federal courts.
In his 13th essay Brutus expressed concern that the clause would both empower and encourage citizens to bring suits against state governments. “This is humiliating and degrading to a government,” he wrote, “and, what I believe, the supreme authority of no state ever submitted to.” He realized this was especially a problem because of the current debt crisis and the fact that most states were still carrying war debt. These debts were contracted on “the full faith and credit” of the state governments, but giving individuals the ability to compel payment on their terms could bankrupt those governments. This could especially be a problem if someone in Maryland sold their notes to someone in Virginia and the Virginian would then in turn be allowed to sue the Maryland government and this would be settled not in a Maryland court but in a federal one. “It is easy to see, that when this once happens, the notes of the state will pass rapidly from the hands of citizens of the state to those of other states.” This, too, would weaken the state governments. The “concurrent jurisdiction” of federal and state courts would ultimately be resolved to the advantage of the former.
Never one to pass on an argument of convenience, Hamilton reminded readers that the federal government would only be allowed to exercise express powers, denying the doctrine of implied powers he defended earlier and would defend even more vigorously later in debates over the national bank. And since, he continued, this doctrine of express powers applied to the legislature it would be reasonable to assume it applied also to the courts. Defending the theory of “concurrent jurisdiction,” Hamilton allowed that state courts would, alongside the federal courts, have the power to hear cases concerning federal law. The appellate power of the Supreme Court, however, would be required to resolve any differences in resolution. Federal Farmer had little doubt as toward whose interests those resolutions would tilt.
If the Anti-Federalists worried about how concurrent jurisdiction could be used to attenuate the authority of the state courts and the states themselves, Hamilton defended the idea from the opposite point of view: he worried that state and local courts would be used to frustrate federal designs. Without the Supreme Court’s appellate power, the lower courts would all-too-often have federal acts at their mercy. Not just federal acts, however; the worry extended to any political matter that concerned the nation’s interest. Hamilton may have been willing to allow local and state courts to hear cases involving “matters of national concern,” but only if those rulings were subject to federal review. Without that appellate power, state and local governments would “defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures.”
One further issue Hamilton addressed was not the Supreme Court’s appellate jurisdiction but that of any federal court over a state court. The Constitution is silent on the issue except, Hamilton believed, to be determined by Congress.
Hamilton made his final defense of Article III in Federalist #83, which I’ll discuss next week. One interesting aspect of the Constitution is that Article I contains a great deal of detail and specificity, Article II less so but still some, but Article III hardly any, and that which is written is hardly written with great clarity and precision. No doubt this tracked with Hamilton’s view that the judiciary possessed “neither force nor will,” neither the sword nor the purse. A more cynical view, however, is that the language was intentionally vague and inexact as a way to allow for correction and expansion of power after the fact when the Constitution’s meaning could be “liquidated” and its arrangements “perfected.” That view was indeed expressed by the “men of little faith;” but then, faith and knowledge are not exactly the same thing.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
Related Essays
