Federalist No. 78, Part I: Context

Something occurred to me the other day.

 In spite of the attention that certain institutions within the United States government as rule seem to enjoy - in spite of how much time and energy pundits and partisans seem to expend monitoring them, attempting to predict their actions, or developing strategies around them - these same institutions are not always very well understood. Take the Electoral College as a case in point. Party tacticians and political commentators have come to rely on it behaving a certain way. They create predictive maps, and run through the possible effects of media buys and campaign stops, and in many cases spend their entire careers attempting to determine how best to bend the system to a particular outcome. And yet, nearly without fail, every four years the purpose and the efficacy of the Electoral College are called into question. For every person who sings its praises, and claims that it represents the unquestionable will of the Framers of the Constitution, another will describe it as a meaningless complication of the democratic process that demands either reform or nullification. The Supreme Court, I think, occupies much the same popular mind-space. Its rulings are either praised or reviled, its role either championed or denigrated. Some acclaim its members as the selfless arbiters of the United States Constitution, while others castigate them for presuming to substitute their own will for that of the American people's elected representatives. This latter cohort asks probing questions: Who are these nine black-robed eminences? What gives them the right to decide what is and is not law? If the United States really is a democracy, why aren’t they elected?        

    Being able to answer these kinds of inquires in anything like a definitive way would seem like an essential first step in having a constructive discussion about the role of the federal judiciary and whether or not it continues to fulfill a useful purpose in American life. As it stands, its supporters and detractors seem intent on talking past each other. They lack a framework of consensus that might otherwise provide structure to their debate. This is, to say the least, a distressing state of affairs. After all, without a shared premise – an agreed-upon description of the ideal role of the United States Supreme Court – the door may well be opened the destructive contortion of the federal judiciary from non-partisan legal arbiter to tool of majoritarian tyranny. Luckily, there are resources of which the American people can avail themselves that have long served to provide a sense of clarity and focus to discussions of deep constitutional significance. I speak, of course, of the Federalist Papers – those indispensable policy essays, penned by some of the finest minds from among the Founding Generation, which collectively explore and explain at length just about every aspect of the pre-amendment United States Constitution. In particular, I mean to draw the attention of my readers to Federalist No. 78, written by the redoubtable Alexander Hamilton with the intention of answering some of the criticisms leveled by Anti-Federalist pamphleteers at the federal judiciary that the Framers had designed. No. 78 answers many of the questions posed above, and in so doing demonstrates a degree of relevance to the political discourse of the 21^st century that belies its publication date over two hundred years past.

Though brief – clocking in at just twenty-one paragraphs – and in fact only the first of six essays – Nos. 78 to 83 – Hamilton wrote on the topic of the federal judiciary, No. 78 nevertheless provides essential insight into the role that the Framers originally intended the Supreme Court to fulfill. In it, Hamilton discussed the need for Justices to hold life tenure – i.e. service during good behavior – the logic of judicial review, and the reasons he felt it was necessary to make the Court a co-equal branch of the federal government. Because these qualities are absolutely foundational to the way that the Court functions, and have also been some of the focus points of popular debate on the subject, No. 78 may fairly be characterized as a kind of primer on the role of the Supreme Court, the reason for its existence, and the intentions of its creators. In addition, because this same essay makes reference to some of the precedents – British and American alike – upon which the concept of a national judiciary was based, it may also be seen as further evidence of the complex origins – intellectually, politically, and socially – of American republican government. Federalist No. 78, if read aloud on the floor of the United States Senate or distributed as handbills to every citizen and permanent resident, may not quell recurrent debates about which touchy social topics the Supreme Court should or should not address, the extent of its authority, or the procedures under which it operates. But at the very least, familiarity with the text therein may at least serve to settle once and for all debate over why the Court exists and what its creators were thinking when they designed it.

But let’s back off a moment and make a few things clear before we proceed.

Because this series has already provided, at various points, a reasonably detailed biography of Alexander Hamilton and an explanation of the purpose and effect of the Federalist Papers, it would seem of little use to reiterate here anything but the most essential points. To that end, it ought to be noted that Federalist No. 78 was originally published on May 28^th, 1788 in the state of New York, that eight of the requisite nine states had at that point ratified the Constitution, and that Hamilton was at that time a practicing lawyer and a member of the New York State Assembly. He was chosen, along with fellow New Yorkers Robert Yates (1738-1801) and John Lansing, Jr. (1754-1829) to attend the Philadelphia Convention in the spring of 1787, and once his colleagues departed in protest of what was being discussed – Yates and Lansing did not feel that the Convention had the right to recommend a new form of government for the United States – became the Empire State’s sole representative in the ongoing discussions. In spite of the freedom such a position would seem to entail, however, Hamilton’s contributions to the finished draft of the Constitution were relatively limited. His various proposals, while patiently considered by his fellow delegates, were almost universally rejected as being overly aristocratic – a President and Senate each elected for life, state governors appointed by the chief executive, etc. Nevertheless, Hamilton considered the completed document a tremendous improvement over the existing Articles of Confederation, appended his name to the final draft, and set about promoting its ratification by the various state conventions. 

On the topic of high courts in the late 18^th century Anglo-American world, a fair bit more ought to be said. After all, the Framers did not draw the framework and logic of the Supreme Court from whole cloth. Rather, they sought to combine elements of existing judicial bodies, tempered with lessons from English, British, and even recent American history, with the aim of synthesizing an institution that combined consistency with innovation. In consequence, and in order to better understand exactly which functions the Framers expected a high court to perform, it would seem a worthwhile exercise to examine, if briefly, some of the antecedents of the United States of America’s federal judiciary.

As per usual, Britain almost certainly looms largest in terms of the influence of its history, politics, and culture upon the Founding Generation. By the end of the 18^th century, the British court system was, at least on the surface, highly specialized, with cases being heard at the national level by the Court of Chancery (tasked with hearing petitions for writs or injunctions), the Court of the King’s Bench (to do with matters concerning the Crown) the Court of Common Pleas (ruling on suits between individuals), the Court of the Exchequer (tasked with weighing appeals), or the High Court of Admiralty (with jurisdiction over maritime law). While each of these institutions possessed its own set of traditions and procedures, and had been created to meet a specific need within the sphere of English jurisprudence, beginning in the 17^th centuries their functions became increasingly difficult to distinguish. This trend further intensified in the 18^th century, with the Court of Chancery, the Court of the Exchequer, the Court of Common Pleas, and the Court of the King’s Bench at various times hearing the same kinds of cases and citing each other’s rulings as precedent. The result was a high degree of redundancy, procedural confusion, and corruption. The Exchequer, for example, gradually took on the role of court of last resort, from which a petitioner could appeal to the House of Lords only with difficulty. The Court of Chancery, by comparison, possessed a far more robust appeals mechanism, and was often preferred by potential litigants as a result. In consequence of minor distinctions like these, certain courts became more highly favored than others, received more business, accrued more prestige, and attracted better talent.     

In addition to the fragmented nature of the 18^th century British court system – as compared to that which was erected in the American republic under the Constitution – justices in Britain also lacked what would become perhaps the single most important power at the disposal of the United States Supreme Court. Namely, they were incapable of nullifying statutes that had been ratified by Parliament and made law by royal assent. There were – and to this day there are – several reasons for this. The first is perhaps the most obvious: unlike the United States of America, Britain has no written constitution against which Acts of Parliament might be measured. Rather, the British Constitution is a kind of philosophical or legal concept whereby every act of law still in force – from the Magna Carta to bills passed by the Commons yesterday – is considered to form part of an unorganized but still binding whole. Thus, when a statute is adopted by Parliament which contravenes an existing law, the latter is simply overwritten. This understandably obviates any need for judicial intervention, and also highlights the second reason that judicial review is not a recognized legal concept in Great Britain: the principle of Parliamentary Supremacy.

In reaction to a series of events stretching across the 17^th and 18^th centuries – i.e. the English Civil War (1642-1651) and the Restoration (1660), the Glorious Revolution (1688-1689), the Act of Settlement (1701), and the Acts of Union (1707) – the British Parliament gradually, and later formally, adopted a set of norms and doctrines intended to counter the discretionary authority of either the Crown or members of the judiciary appointed by the same. As particularly embodied by the Bill of Rights of 1689 and the aforementioned Act of Settlement, it became generally recognized that Parliament was permitted to make law touching upon any subject, that no law passed by one Parliament could not be subsequently repealed or altered by another, and that no legitimate Act of Parliament could be nullified by the ruling of a court. Combined, these principles solidified the role of Parliament as the sole and supreme maker of law in Britain. As Parliament was held to embody the will of the British people and acted as the guardian of their rights, Parliamentary Supremacy therefore guaranteed that said people the only legitimate source of political authority. While unrepresented in Parliament – and thus theoretically exempt from its authority – the Glorious Revolution and its implications loomed large in the 17^th and 18^th century Anglo-American cultural consciousness, and helped condition the way American colonists from Massachusetts to Georgia understood the relationship between their own governments, Parliament, and the Crown.

As discussed in past entries in this series, however, the realities of life in 17^th and 18^th century British America often shaped the expectations of residents therein in ways that defied or rejected the received knowledge of contemporary British political culture. Unlike Britain proper, the various colonial governments were defined by written charters, granted by the Crown and capable of being amended or nullified only by that same authority. In theory, the existence of these charters placed the colonial governments beyond the remit of Parliament – as a set of contracts between the monarch and his/her subjects in particular regions of North America, they could not be countermanded or repealed by a Parliament which had no part in their creation. That being said, Parliament generally claimed the right to legislate for the colonies – the so-called “Declaratory Act” of March, 1766 made this sentiment explicit by asserting that the British legislature possessed, “Full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America […] in all cases whatsoever” – while the relationship between the various settlements of British America and the Crown were mediated by a body within the Privy Council whose members were universally sitting or former members of the House of Common or the House of Lords. Citizens of British America were therefore placed in the unique position of recognizing, owing loyalty, and paying taxes to two separate governments – one which was codified and unalterable except by a centralized authority, and another which was uncodified, unrepresentative, and wholly exempt from any limitations on its ability to make law. Parliament could theoretically do nothing to alter the form or function of the various colonial governments, while the colonial governments were likewise wholly incapable of challenging the legislation adopted and enforced by Parliament. Neither the Crown nor the courts could intercede on behalf of the colonies, and in such cases the citizens of British America were left entirely without recourse.