Federalist 83
Federalist #83 is the longest essay written by Publius, more than six times as long as the short Federalist #13. 83’s prolixity is compensated for by its density. Never a clear stylist, Hamilton seemed in this paper to reach new levels of tortured syntax and excess expression. This being Publius’s final essay concerning the judiciary, Hamilton felt especially obligated to deal with the last of Anti-federalist arguments, “disingenuous” and “artfully calculated” and “perverted” and “destitute of all just foundation” as he found them to be.
The main issue at stake in 83 was Anti-federalist concern that the Constitution did not sufficiently protect the institution of trial by jury, which they considered “the very palladium of free government” while Hamilton simply saw it as “a valuable safeguard to liberty.” One of the central issues, as always, was the possibility of the corruption of those holding office. It would prove more difficult to corrupt a whole jury, Anti-federalists believed, then it would be to corrupt an officer or a judge. The possibility of corruption was always at the forefront of the Anti-federalist mind; Hamilton, while not insensitive to the possibility, placed his confidence again in “men who had been chosen by the government for their probity and good character.”
The debate highlighted the long-standing difference between where one should place political trust, a debate with us to this day. The Anti-federalists put their trust in face-to-face relationships and commitment to their places with their traditions of local self-governance while Hamilton placed his trust in “elites” and in the mechanistic operations of a large system. His skepticism concerning juries indicated the extent of his anti-populist tendencies. He worried about “jurors promiscuously taken from the public mass” and the ability to mislead them, buy them off, or (especially) appeal to their partisan passions. In addition, “juries cannot be supposed competent to investigations that require a thorough knowledge of the laws.” The more complex the system of law the more likely you run into “instances so nice and intricate, that they are incompatible with the genius of trials by jury.” Expressing a sudden concern for the well-being of jurors, Hamilton noted that the difficulty of the cases would “require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations.”
Hamilton believed he had found a two-fold solution to the possible corruption of the jury system. The first involved Publius’s general constitutional principle that ambition and partisanship could be pinched out by having different institutions push against each other. The judge could move for a retrial while the jurors could bypass the judge’s own predilections and prejudices in their deliberations. “Here then,” he wrote, “is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.” We tend to forget, to the detriment of liberty, that, when it comes to government, “obstacles to success” ought to be proliferated rather than bypassed.
The second security against corruption resulted from a (presumed) commitment to principles of interpretation. Hamilton here referred to a term very much in currency in 18th century America, influenced as writers were by Scottish Common Sense Realism. This school of thought took simple experience as a starting point for reflection, trusting that the naive interactions we have with the external world are inherently reliable. We don’t need to launder such perceptions through philosophically skeptical efforts to ground our beliefs in unshakeable foundations.
“Common sense” thus refers in part to the simple beliefs generated by experience: we often distinguish between people who have “common sense” and those with their heads in the clouds. In the legal world, however, it has a broader meaning, the approach to life that a community holds in common. Put another way, “common sense” refers to the general sense of society derived from its traditions, habits, mores, and prejudices (properly understood). It results in a mode of practical wisdom, sound judgement, and a strong ethical sense that provides a guide for action. It establishes the framework within which legal reasoning takes place. “The rules of legal interpretation,” Hamilton wrote, “are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived.” A law, then, could only be considered just in relation to its “common sense.”
This is where Hamilton ran into a bit of a problem. If common sense connected directly to the specific traditions and prejudices of particular communities, a national judiciary would have no “common sense” it could really draw upon, there having been no union effectively in place under The Articles. How could a law be interpreted in relation to it “common sense” when there were no national traditions in place? We “must be sensible,” he argued, that the “federal government” was “a composition of societies whose ideas and institutions in relation to the matter materially vary from each other.” He ruefully acknowledged that this “difficulty must be not a little augmented,” and that it would take time to do so. To make his point, Hamilton reviewed the differences in the judicial systems of the extant states, demonstrating the variations in both structure and operation and how those variations would make it impossible to create a federal court that could dictate policies concerning trial by jury. But that also, he seemed to forget, made the principle of interpretation tenuous at best.
Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term HERETOFORE could relate.
I need not review all the differences among the state courts, those which Hamilton reviewed in detail in #83. The point was that there was no way to create a uniform court system out of the patchwork of state courts, especially given the existence of equity courts (“courts of chancery”) that exercised tremendous discretionary power. Those courts empowered judges, for they eschewed juries, to operate outside the normal ministrations of the law, but in their remedial role were thought, by some at least, essential to insuring justice. “The great and primary use of a court of equity,” Hamilton insisted, “is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS to general rules.” I’m going to add this, since the word “equity” has found its way back into our vocabulary: equity only applied to specific instances and never, as a matter of principle, applied to classes of persons. Treating “equity” as a synonym for equality, or—worse—as a substitute for it, distorts rather than advances the cause of justice. Hamilton believed that not giving the federal government any equity power was a mark in the Constitution’s favor.
Hamilton went out of his way, as he did in #82, to assure critics that the authority of the state courts was not only sacrosanct but further evidence of the weakness of the federal courts, as well the Constitution itself. The new judicial powers granted to the federal government may have seemed extensive, it only compared with The Articles of Confederation that provided for no federal judiciary at all. Hamilton again reminded readers that the legislative power would be preeminent and Congress’s powers were limited by their enumeration. Hamilton once again dismissed the doctrine of implied powers:
The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified.
The branches of government created in the federal constitution found their progenitors in the state governments. Hamilton addressed #83 more directly to the citizens of New York than he did in almost any other paper, reminding them of the structure of their court system before pivoting to argue that that model couldn’t be applied to the federal system since other states would have preferred their systems. He may have hoped that states and the citizens thereof could put such parochial feelings behind, but he also knew that ratification would have then been impossible. “It is natural to suppose,” he sighed, “that [citizens] are hitherto more attached to their own, and that each would struggle for the preference.” Taking one state as a model for the whole would have inflamed the jealousies of those with a “predilection of each representation in favor of its own government.” Even if a superior system existed in one of the states, that would have intensified the problem because it would only serve to increase the “great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one.” “The enemies of the plan,” he huffed, “would have been furnished with a fine pretext” for indulging further the “local prejudices” that alone motivated resistance to the proposed system.
The reader may be forgiven, when reading an essay of #83’s length and complexity, for missing aspects of Hamilton’s argument. Concerning the possibility that the new government could round out its powers after ratification, one had no need to read “emanations from the penumbrae” in #83. Having argued in #82 for the gradual liquidation of meaning, Hamilton here admonished readers that “future experience” would discover the extent of the “propriety and utility” of federal power. “I suspect,” he said with reference to the courts, but as a principle that could be applied to government generally, that it would “be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop.” Hamilton’s eager suspicions were the stuff of Anti-federalist fears; perhaps no specific border could be drawn around federal power, but the clearer the lines at the beginning the harder they would be to blur later. Their fear that the courts would become complicit in blurring the lines demarcating federal from state power proved, once again, prescient.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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