Friday, April 28, 2017

Federalist No. 78, Part VI: Precedent, contd.

Unsurprisingly – owing once again to his reliance on pragmatic over precedential reasoning – Hamilton mentioned the specifically American precedents for his conception of judicial review only once, and rather obliquely at that. Specifically, after discussing the chilling effect that he believed allowing the federal judiciary to review statutes would exert upon any mischief contemplated by the legislative branch, he noted in paragraph eighteen of No. 78 that, “The benefits of the integrity and moderation of the Judiciary have already been felt in more States than one [.]” Granting that Hamilton failed to mention any states in particular, and that “the benefits of the integrity and moderation” is a similarly vague attribution, his meaning would seem to be that some of the existing state courts had already managed to restrain the excesses of their relevant legislative counterparts by either actively reviewing statutes formulated by the same or at the very least threatening to do so. Eagle-eyed readers will here note, of course, that none of the state constitutions written during the 1770s stated explicitly that it fell to the judicial branch of the relevant government to review the actions of the legislative and executive branches therein. The courts were given jurisdictions and their members certain powers and privileges, but nowhere was it acknowledged that the nature of a limited constitution made the state judiciary the ideal arbiter of the same. And yet, though he failed to call out any cases in particular, Hamilton was right – some state courts had indeed adopted the power of judicial review over the course of the 1780s. And while those that did so approached the principle in a generally ad hoc, circumstantial manner, the examples they rendered nevertheless spoke directly to the federal balance of power that Hamilton explicitly supported in Federalist No. 78.  

Take the case of Trevett v. Weeden (1786), heard by the Supreme Court of Judicature of Rhode Island, as a prominent example. In May, 1786, the General Assembly of Rhode Island approved a law permitting paper currency to be passed as legal tender. Further legislation established a series of penalties for those refusing to accept said currency and decreed that offenders were to be tried by a panel of judges – wholly without the benefit of a jury. In fairly short order, the latter provision was challenged on the basis that the Constitution of Rhode Island protected trial by jury as a right guaranteed to every citizen thereof. Associate Justice David Howell (1747-1824) concurred with this evaluation on the basis that the state’s governing charter, being the paramount law of the land, of essence outweighed an act of the General Assembly, and ruled that the statute under examination was therefore invalid. While it is worth recalling at this juncture that Rhode Island was one of two states – along with Connecticut – that declined to replace their colonial charters with republican constitutions in the 1770s, this fact had no material effect on Justice Howell’s ruling or the logic by which he arrived at it. Whether the supreme governing document of the Ocean State had been drafted and ratified by the citizens thereof or derived its legitimacy by way of an accord between local political authorities and the British Crown, the end result was the same: the General Assembly could not claim to have created it, and thus could not claim the right to alter it.    

Admittedly, Rhode Island was in a somewhat unusual position among the majority of its sister-states. By declining to draft a constitution following the declaration of American independence in the summer of 1776, the chosen representatives of the people of that state essentially ratified and agreed to abide by the terms of the charter that had been granted to them by Charles II in 1663. No changes were made to the text thereof, and instead what transpired was largely a matter of presentation – i.e. “the People of Rhode Island” being substituted in place of “the Crown” when the moment called for it. Among the immediate practical implications of this decision, two appear particularly noteworthy. First, unlike every other state – save, again, Connecticut – the post-independence government of the State of Rhode Island enjoyed almost complete continuity with the pre-independence government of the Colony of Rhode Island and Providence Plantations. No “breaking-in” period was necessary – as previously theoretical provisions were put to the test of everyday governance – and no conflicts were likely to arise from a suddenly altered social and political status quo. An unseen consequence of this smooth transition from colony to state, however, lay in the as-yet undefined relationship between the people of Rhode Island and their supreme governing text. Because the Crown had possessed sole authority during the colonial era to revoke or alter the governing charter, there existed no provisions therein for formal oversight or amendment. As a result, though Rhode Island became a sovereign state after 1776 – and therefore no longer subject to the British Crown – it lacked any clearly-defined means to either change its own constitution or to ensure that all laws passed by the General Assembly were conformable to the same.       

In consequence, when Trevett v. Weeden came before the Supreme Court of Judicature in 1786, no applicable precedent, framework, or form existed by which a remedy might be found. The political authorities responsible for declaring the independence of the Ocean State had evidently failed to foresee any such need, and the text of the charter-cum-constitution entirely failed to conceive of a disagreement between normal law and supreme law that a resort to the Crown could not allay. Faced with this seemingly intractable conundrum, Justice Howell thus proceeded logically. Rather than claim that his court possessed the power to nullify legislation by right, his decision instead flowed out of simple necessity – i.e. the issue was laid before the Court, and so the Court would render a verdict. Thus, without altering the text of Rhode Island’s constitution, Howell effectively expanded the powers of the Supreme Court of Judicature and created a precedent for the nullification of statute determined to be in conflict with the state constitution. That this was accomplished through a plainly pragmatic process of enquiry – the General Assembly did not possess the power to alter the state constitution, therefore its acts must give way to the provisions of the same – testifies to the novelty of the undertaking. It would also seem to indicate that judicial review – at least in this particular instance – was an organic outgrowth of the style and structure of government contemporary Americans were in the process of erecting.  

 An earlier case, Rutgers v. Waddington (1784) carried similar implications, though with a national rather than state focus. Heard by the Mayor’s Court (presided over by the Mayor of New York City and otherwise known as the Court of Common Pleas), the suit in question essentially involved a disagreement over property ownership and back rent between plaintiff Elizabeth Rutgers and defendant Joshua Waddington. Under the terms of the Trespass Act – ratified by the New York state legislature in 1783 – people like Rutgers, who had been made to flee her properties during the recent British occupation of New York City (1776-1783), could sue people like Waddington, who had taken possession of and attempted to run a brewery that she had been forced to abandon, for potential damages and/or unpaid rent. Rutgers, having returned to the city only to find that the brewery she and her family had labored to establish and expand had been recently incinerated in an accidental fire, demanded that Waddington repay the £8,000 he nominally would have been charged as her tenant during the previous seven years.

The council for the defense – a Continental Army veteran and up-and-coming lawyer named Alexander Hamilton – argued that Rutgers’ claim was illegitimate because Waddington had been given control over the property in question by the British occupying authorities and had already been obliged to pay rent to the same. In accordance with recognized norms and practices, he asserted, Waddington’s use of the brewery was justified by the legitimate occupation of New York City and the accompanying declaration of martial law. Rutgers’ suit was therefore invalid because the statute that authorized it – the Trespass Act – failed to recognize these facts, and because said act also violated several articles of the recent peace treaty signed by representatives of Great Britain and the United States. Doubtless Hamilton was referring to articles five – “All persons who have any interest in confiscated lands […] shall meet with no lawful impediment in the prosecution of their just rights” – and six - There shall be no future confiscations made nor any prosecutions commenced against any person or persons for, or by reason of, the part which he or they may have taken in the present war” – of the Treaty of Paris (1783). Because Congress had ratified these articles, and because each of the thirteen states sent delegates to the selfsame body, Hamilton argued that the state of New York lacked the authority to abrogate what it, and its sister-states, had already effectively consented to. Mayor James Duane (1733-1797), in his capacity as presiding justice of the court, handed down a split verdict: while granting that the state legislature may indeed have overstepped its authority in ratifying the Trespass Act, Waddington was still obligated to pay back rent to Rutgers for the period of his possession of her property predating his engagement as a tenant of the British occupiers. With Hamilton’s counsel, the two eventually settled out of court for the sum of £800.          

Laying aside the minutiae of the case – the applicability of the “law of nations” and the rights of occupying authorities in time of war – the core verdict proclaimed by Mayor Duane was profoundly significant in its implications for the relationship between state and national authorities and constitutional theory in the nascent United States. When asked to consider the relative weight of New York law – lately drafted and approved by the people’s duly elected representatives – and what passed in the early 1780s for national law – crafted in part by the peace commissioners delegated by Congress and approved by the delegates to the same – Duane concluded that the latter was superior. In spite of the comparative weakness of the government formed by the Articles of Confederation, states that had ratified said document – by 1784 this included all thirteen –  were bound to obey the terms thereof. As Article 9 of this pseudo-constitution asserted that Congress possessed the sole right, “Of determining on peace and war,” and, “Entering into treaties and alliances,” New York was seemingly barred from abrogating any article(s) of peace between the United States of America and another sovereign nation. While the Mayor’s Court did not nominally possess the authority to make this determination – in that reviewing state law for compliance with federal regulation was not a power it explicitly possessed – lawyer Hamilton and jurist Duane seemed to arrive at the shared conclusion that such an assumption of responsibility was demanded by the circumstances. Individual states were not empowered to substitute their laws for federal treaties; all else was merely logic. 

Returning – finally – to Federalist No. 78, the “benefits of the integrity and moderation of the Judiciary” that had “already been felt in more States than one” might now be better understood. Granted, cases like Trevett v. Weeden and Rutgers v. Waddington were not terribly common prior to the drafting of the United States Constitution in 1787 and its creation of a federal judiciary. State legislatures were notoriously domineering during the post-war 1780s, with few limits on their power and few rival institutions willing or able to stand in their way. In consequence, most state courts lacked the will to oppose an act of their respective legislature, even if they believed said act to be in violation of that state’s constitution. In spite of how exceptional this rendered the cited cases, however, they nevertheless represented viable precedents for the style of constitutional government that Hamilton advocated in No. 78. In both instances, the power of the relevant state legislature ran up against and was checked by an existing charter or contract over which it lacked any legitimate authority. The pertinent judicial authorities – the Rhode Island Supreme Court of Judicature and the New York City Mayor’s Court, respectively – in either case thereby acted merely as facilitators of this process without necessarily claiming any special authority of their own.

Hamilton – whose personal role in Rutgers V. Waddington ought to be distinctly recalled – argued for almost exactly this kind of arrangement in his pro-constitutional essay. The federal judiciary, he asserted, could not substitute its own will for that of the elected representatives of the American people, any more than said representatives could claim the right to override the stated will of their own constituents. The United States Constitution was of a superior quality – legally speaking – to the laws passed by Congress. Indeed, its provisions created Congress, gave it structure, and set the limits of its authority. In consequence, Congress – like the legislatures of Rhode Island and New York – was bound to obedience, and to respect the forms and procedures of that which it had not created and could not alter. The federal courts – like the aforementioned state courts – would see to it that this maxim was adhered to solely in the interest of protecting and preserving the supreme law of the land – the functional equivalent of Rhode Island’s 1663 charter or the 1783 Treaty of Paris. Though Federalist No. 78 did not seek to draw these parallels in a particularly explicit fashion, it at the very least nodded in their direction.

And perhaps that was enough. Having directly shaped the outcome of one of these two ground-breaking cases, perhaps Hamilton felt it unnecessary to re-litigate the particulars thereof. Specific circumstances had produced the verdicts rendered in Trevett v. Weeden and Rutgers v. Waddington. Provided that the requisite nine states voted to ratify the proposed constitution, it perhaps seemed to him inevitable that the United States would eventually find itself in much the same situation. The assertions and arguments put forth in No. 78 might have prepared the ground for what came next – or at least provide specific answers to certain specific criticisms – but it may simply have been the case that Hamilton’s fellow countrymen would only come to realize the inexorable necessity of several prior state court decisions by coming face to face with yet another variation of the same constitutional conundrum.

Friday, April 21, 2017

Federalist No. 78, Part V: Precedent

In addition to the application of highly pragmatic reasoning – a favored approach of Alexander Hamilton when addressing a public forum – Federalist No. 78 also sought to convince its intended audience of the soundness of the judicial branch described by the proposed constitution through the use of that great enhancer of argument in the Anglo-American cultural tradition, precedent. In this mode, however, Hamilton displayed a remarkably restrained sensibility. Rather than rely on the power of cited example and its significance within the English Common Law tradition to overawe his readers into accepting the Framer’s formulation of a federal judiciary, he proceeded instead to sparingly deploy brief and often oblique references to both British and American models for the various structures and procedures he was attempting to promote. Likely this was an admission to circumstance as much as it was a stylistic choice. Though many of the various states had chosen to essentially preserve their existing colonial-era high courts during the transition to independence after 1776 – apparent evidence of the conservative foundations of the developing American jurisprudence – the emerging relationships between state judiciaries, legislatures, constitutions, and populations did not compare favorably to the dynamic between the federal courts and the proposed constitution that the Framers envisioned and that Hamilton explicitly favored. To put it another way, precedent favored Hamilton’s case in some regards, but in others it ground against his overarching objective of convincing his countrymen that the federal judiciary needed to be solely responsible for interpreting the fundamental governing document of the United States of America.  

The practice of permitting judicial appointees to serve for life during good behavior – favored by the Framers and by Hamilton – was one of the few areas wherein the application of precedent clearly favored the proposed constitution. While Hamilton very capably– though, as previously discussed, somewhat haphazardly – asserted in the text of No. 78 all of the very practical reasons that the custom of life tenure ultimately served to benefit the American people, tradition also weighed in favor of seeing the same practice carried forward. Paragraphs five and twenty-one of the selfsame essay made exactly this point, in both instances by pointing to the experience of the American republic’s late colonial overlord. “The standard of good behavior for the continuance in office of the Judicial magistracy,” the former proclaimed,

Is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy, it is an excellent barrier to the despotism of the Prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body.

Begging forgiveness for quoting the latter half of this passage a second time in this series, consider some of the implications of what Hamilton has said. While many of the existing state constitutions, as discussed in a previous entry, did mandate the service of judicial appointees during good behavior, the “most valuable of modern improvements” to which Hamilton was referring unquestionably predated the existence of those early republican charters. The reference to monarchy and to the “despotism of the Prince” make this quite clear, and indicates instead that No. 78 was referring to the British tradition that the American states had so lately appeared to reject.         

Judicial independence, as guaranteed by life tenure and service during good behavior, was, by the latter half of the 18th century, a well-worn principle of British legal and political culture. As decreed by Section III of the Act of Settlement (1701) – a statute otherwise concerned with establishing a Protestant line of succession to the throne of England – judges commissioned by the Crown were to serve, “Quam diu se bene Gesserint and their Salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawfull to remove them.” Translated into English, the Latin phrase cited above reads “as long as he shall behave himself well,” and in practice was meant to ensure that the appointed justices could not be arbitrarily removed unless they had clearly abused the authority of their office. Prior to the passage of the Act of Parliament containing this clause, the Crown not infrequently used the courts to enforce political and/or religious directives and dismissed justices who refused to cooperate. The monarchs of the House of Stuart – the royal house of England between 1603 and 1714 – were particularly notorious for their highly partisan relationship with the English judiciary, as certain notable instances attest.

Charles I (1600-1649), for example, showed little compunction about using either the Court of High Commission – the highest religious court in England – or the Star Chamber – a court of equity that became notorious for its arbitrary rulings – to punish religious dissenters in the 1630s or to make law without the aid of Parliament. Because the justices of these two bodies served at the pleasure of the Crown, they had neither the ability nor the inclination to object to the instructions they were given. James II (1633-1701) developed a similarly dictatorial dynamic with some of the justices commissioned under his authority when, in 1686, he sought a favorable ruling on his claimed authority to dispense with – or ignore – Acts of Parliament. In violation of the terms of the Test Acts of 1673 and 1678 – which declared that all persons filling either military or civilian offices were required to recognize the sovereign as the rightful head of the Church of England – James had attempted to appoint a number of Roman Catholics as regimental commanders. When Parliament objected to what its members perceived as an unjustifiable overextension of the royal prerogative and the question was put to the courts, the king proceeded to dismiss a number of justices – as well as the Solicitor General, Heneage Finch (1649-1719) – until he received the desired result. The inclusion of the cited clause within the Act of Settlement – was a direct reaction to these kinds of heavy-handed policies on the part of the Crown. Along with the Bill of Rights of 1689, the Act essentially served as the culmination of the Glorious Revolution (1688) and the civil and military conflicts of the 17th century by effectively repudiating the authoritarianism of the Stuart dynasty and marking the start of a new era in the history of English – and soon enough British – legal and political culture.    

There can be no doubt that certain of Hamilton’s audience favored a complete rejection of all things English, and sought instead to set the nascent United States upon a more abstract foundation of classical republicanism. These individuals – led by devotees of the European Enlightenment like Thomas Jefferson – would thus likely have responded poorly to assertions of the primacy of English historical example. That being said, a great many Americans in the late 1780s, who have lived through and participated in the Revolution, tended toward a more conservative frame of mind. Despite the political conflicts that Parliament had aroused in the American colonies during the 1760s and 1770s, many participants in the resulting protests and resistance movements maintained an ardent and deep-seated affection for British culture, history, and legal norms. This sense of affection did not wholly dissipate once the United States firmly secured its independence in the early 1780s, and so many of the people Hamilton addressed himself to in Federalist No. 78 would have responded positively to invocations of British precedents for proposed American initiatives. Thus, when paragraph five of said essay claimed that life tenure during good behavior was “one of the most valuable of the modern improvements in the practice of Government [,]” its author could depend on no small portion of his readership to interpret this affirmation as both a compliment to the culture and the institutions that they still revered as well as a positive association between the proposed federal constitution and the same.

The second half of the aforementioned citation was doubtless intended to engender the same response. By praising life tenure during good behavior as “an excellent barrier to the despotism of the Prince [,]” Hamilton effectively focussed the attention and the affections of his audience upon something he knew that they already esteemed. The British Constitution – which, unstructured legal compendium that it was, included everything from the Magna Carta to the aforementioned Act of Settlement – indeed made provision for an independent judiciary. Late 18th century Americans, though no longer British subjects, still widely considered themselves inheritors of British culture and traditions, and so had every reason to look upon such an affirmation of the quality of British government with pride. The comparison that followed – between a monarchy and a republic – then attempted to shift this sense of pride and affection towards a consideration of what a truly effective federal government required. Thus, with subtlety and efficiency, Hamilton drew a rhetorical line between Great Britain – which remained an object of widespread popular regard – life tenure – which was a distinctly British innovation – and the proposed federal judiciary – which in this case endeavored to be as useful to the American people as Britain’s own high court had been to the citizens thereof.

Hamilton seemed intent on evoking much the same sentiment in the twenty-first and last paragraph of No. 78. Having, by that point, argued at significant length as to the purpose of the proposed federal judiciary and the need for its officers to serve during good behavior, said paragraph sought to conclude matters by taking a broad view of the issues at hand. “Upon the whole,” it began,

There can be no room to doubt that the Convention acted wisely, in copying from the models of those Constitutions which have established good behavior as the tenure of their Judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good Government.

Putting aside Hamilton’s breezy confidence – warranted or otherwise – in the strength of the case he had made, the substance of this final commentary says a great deal about his own assumptions and those he attributed to his audience. The Constitutional Convention, he wrote, was wise to copy the standard of life tenure for judicial officers from the constitutions that had previously adopted it. As Hamilton and his audience both knew, this included the majority of the existing state constitutions and the unwritten British Constitution. Ascribing wisdom to the recognition of the superior elements of these documents indicated that they had something worthwhile to offer to a proposed American federal government. Thus, once again by a logical transference, Hamilton drew a line between the relevant constitutions, their supporters, and the proposed federal courts. By further claiming that the national judiciary would have been “inexcusably defective” without the aforementioned copied element, Hamilton again offered subtle acclaim to the relevant constitutions and indulged the pride of their supporters. The federal judiciary was worthwhile, he essentially claimed, in large part because it replicated elements of existing government that were themselves well-devised. Thus, without having to say as much, Hamilton doubtless hoped that those among his readers who favored the state constitutions or the British Constitution would come to favor the United States Constitution as well.   

The last sentence of paragraph twenty-one seemed calculated to evoke this sentiment by the use of yet plainer language. “The experience of Great Britain,” it read, “affords an illustrious comment on the excellence of the institution.” Having spoken previously of nameless monarchies, and princes, and “the models of those Constitutions [,]” Hamilton finally laid bare his intention to invoke Britain as a moral and logistical exemplar. Great Britain’s experience with life tenure and an independent judiciary was “illustrious” as described by No. 78, and served to reinforce the value of the practice itself. Not only did this commentary speak to the demonstrable fact that the Quam diu se bene Gesserint of the Act of Settlement had indeed brought an end to a destructive relationship between the Crown and the courts, but it also tied the emotional and – arguably – spiritual attachment many of Hamilton’s countrymen still felt towards British culture to a particular legal practice. That the proposed federal constitution also recognized this practice therefore spoke to its own quality, and provided an assurance to skeptical observers that at least some of the legal norms they had come to revere as British subjects would continue to be respected and enforced under the auspices of an empowered and effective federal government.    

Of course, as discussed above, not every member of Hamilton’s audience would have responded with enthusiasm to a comparison of the proposed United States Constitution with its unwritten British counterpart. Indeed, the impulse to do so likely says as much about Hamilton himself as it does about his audience. Decried by his enemies as a Tory – i.e. a supporter of the Crown and an opponent of the Revolution – the 1st Secretary of the Treasury was an unapologetically vocal proponent of centralized government, national banking, and a strong military establishment. As all of these were also hallmarks of the 17th and 18th century British Empire, it stood to reason that Hamilton would perceive Great Britain as a useful example for the United States to follow. Federalist No. 78, among others, in some part reflects this understanding. Not only did its author believe that British history, law, and politics contained useful answers to many of the administrative and logistical questions plaguing the nascent American republic, but he seemed also to perceive his readership as either possessed of similar sentiments already or willing and able to be convinced of the same. In spite of these personal predilections, however, Hamilton tended not to rely solely upon the invocation of British examples to carry the balance of his argument. After all, there were a number of very useful American precedents for his and the Framers’ preferred relationship between the federal courts and their co-equal counterparts.

Friday, April 14, 2017

Federalist No. 78, Part IV: Pragmatism, contd.

The other characteristic of the federal judiciary which Hamilton seemed to feel rendered it particularly suited to the task of interpreting the Constitution – described above as “steadiness” – might variously be thought of as its inherent constancy, impassivity, conservatism, or resistance to change. Whereas Congress and the Presidency were, of essence, intended to be mutable institutions that responded to the shifting sentiments of the voting public, the federal judiciary was conversely designed to preserve and promote a degree of consistency and immutability. To that end, its members, while appointed and confirmed by the President and the Senate, respectively, were to serve during good behavior – i.e. for the duration of their lives, barring any significant professional impropriety. The sense of autonomy that would naturally result from this condition – federal justices possessing no fear of being removed at will, either by executive fiat or at the behest of the voters – would ensure, Hamilton asserted throughout the text of No. 78, any number of positive outcomes. Not least of all, he began in paragraph five, it would aid in providing an invaluable check on the power and ambition of either the legislative or executive branches of the federal government. Whereas both of those institutions would be naturally inclined to cultivate the affection and loyalty of the general public – if for no other reason than to preserve their respective positions – justices serving life tenures would be free to cultivate only a loyalty to the law itself.  Being safe from removal or interference would also better enable the federal courts to stand in opposition to their co-equal counterparts when the situation called for it. “In a monarchy,” Hamilton accordingly analogized, judicial independence, “Is an excellent barrier to the despotisms of the Prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”  

Where this quality of independence touched upon the ability of the federal courts to properly interpret the Constitution chiefly concerned the unusual perspective that possessing life tenure lent to its members. Being directly responsible to the general public through the mechanism of frequent elections, the people chosen to speak for their neighbors in the legislative assembly of the United States were bound to understand their duty to their fellow countrymen as being fairly immediate in nature. Forced almost perpetually to seek re-election, members of the House of Representatives in particular were very likely to pay close attention to the issues that at any moment seemed to animate their constituents. While, in principle, this situation was by far preferable to the alternative – i.e. legislators who wholly ignored the interests and concerns of the people they were supposed to serve – the fact of it did leave the process by which federal law was made vulnerable to the periodically ill-informed passions of the voting public. Hamilton’s characterization of this weakness in the seventeenth paragraph of No, 78, though somewhat lengthy, is worth citing here in full. There were, he reflected,    

Ill-humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the People themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasions dangerous innovations in the Government, and serious oppressions of the minor part of the community.  
          
Evidently, the soon-to-be Secretary of the Treasury was concerned by the speed at which democracy tended to function. Note, for instance, that he believed “designing men” and the “ill-humors” they sought to cultivate would, in the fullness of time, always give way to “more deliberate reflection [.]” It was not, therefore, the people themselves that Hamilton necessarily doubted – contrary to his historical reputation as a closeted autocrat – but rather the efficacy of any system of deliberative government that did not encourage periods of regular meditation on the issues of the day. Some kind of brake was needed; a bulwark against which the passions of the multitude could crash, spend their energy, and then dissipate. 

Enter, once again, the judicial branch, whose members would be under no obligation to accede to the will of the general public. Their mandate, as officers of the federal government, would be solely to ensure that every statute passed by the federal legislature and enforced by the federal executive was wholly compatible with the terms of the Constitution. In so doing, the federal courts would act against the necessary but tumultuous dynamism of Congress in particular as a kind of stabilizing force. Their membership would change infrequently, their highest allegiance would be to the supreme law of the land, and their mandate would be unquestionable. While this characterization may not sound overly democratic, the need for such a rigid, unchanging, and unresponsive force within the framework of a constitutional republic was nothing less than paramount. The issue, Hamilton asserted in the aforementioned seventeenth paragraph of No. 78, lay with the incontestable right of the American people to, “Alter or abolish the established Constitution, whenever they find it inconsistent with their happiness [.]” While there was no logical argument that could be successfully deployed against this core tenet of American republican government, Hamilton simultaneously cautioned his readers that the Constitution was alterable only within the framework of the amending formula laid out therein. “It is [therefore] not to be inferred,” he wrote,   

That the Representatives of the People, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions of the existing Constitution, would, on that account, be justifiable in a violation of those provisions [.]

Even if it could be demonstrated that a majority of the American people were in favor of modifying certain aspects of the Constitution, Hamilton stressed, any attempt to undertake said modifications by legislative action alone – by, for instance, attempting to pass laws that conflicted with the offending provisions – could not be considered legitimate.

Constitutionalism, at its core, demanded such strict adherence to established forms and procedures. If, as Hamilton ardently hoped, the American people were to adopt the proposed constitution then under consideration by the various states, this most basic principle would need to be enforced and respected. The people would continue to be the font of all authority in the American republic – they were the only entity that could appropriately claim to accept or reject the Constitution, and as Hamilton argued more than once over the course of Federalist No. 78 this lent the document itself unparallelled weight. Though members of Congress were to be chosen by these same people, however, the delegated authority that Representatives and Senators were to possess could not measure up to the direct authority people like Hamilton claimed for the approved Constitution. The powers of the Presidency were similarly inferior to the dictates of the Constitution, and so were those of the federal courts. In short, American republicanism recognized the people as paramount; if the people were directly responsible for giving sanction to the Constitution, then it too must also be paramount.

While this “sovereignty formula” might seem simple enough on its face, Hamilton was careful to acknowledge in No. 78 that its continued enforcement would require discipline and integrity as well as an adherence to codified procedure. Having recognized that the federal legislature was poorly-suited to judge the constitutionality of its own actions – its members being far too eager, by design, to cultivate the support of their constituents – and that the federal judiciary was conversely well-equipped to hold the rest of the national government to a high standard of constitutional conformity, Washington’s former aide-de-camp nevertheless forewarned his audience that federal justices would still be susceptible to the power of public opinion. Though relatively isolated from the American people in their day-to-day duties, their powers and responsibilities were derived from the same source as their legislative and executive counterparts – i.e. the popularly-approved Constitution. In consequence, once exposed to the same expressions of popular sentiment as Congressmen, Senators, or the President – all of whom owed their office to some form or other of popular support – it was only natural that some officers of the courts might feel it difficult to justify rigid adherence to demonstrably unpopular constitutional provisions. Furthermore, as federal justices were to be members of what Hamilton described as the weakest branch of the federal government, it stood to reason that they may likewise feel poorly-equipped to stand in opposition to legislative or executive prerogatives, particularly when they possessed popular support. Indeed, Hamilton fittingly reflected in paragraph seventeen of No. 78, “It is easy to see that it would require an uncommon portion of fortitude in the Judges to do their duty as faithful guardians of the Constitution, where Legislative invasions of it had been instigated by the major voice of the community.”

Without saying so explicitly – at least in that particular section of No. 78 – Hamilton’s favored safeguard against the exposure of federal justices to popular coercion that he explored in paragraph seventeen was plainly the practice of life tenure. Indeed, Federalist No. 78 seems at times to paradoxically advocate for the principle of judicial review and the recognition of life tenure in a way that appears almost self-reinforcing. Members of the federal judiciary were to serve during good behavior, he observed, thus making then ideally suited – isolated, as they were, from either popular tumult or executive pique – to act as the final arbiters of the Constitution. At the same time, he argued, allowing the federal courts to litigate the Constitution would require that they possess the ability to ignore any and all consideration but those which the law placed before them. Allowing justices to serve life tenure would doubtless ensure that this desired degree of impartiality was properly cultivated. In essence, these arguments would seem to amount to Hamilton asserting that the courts could serve a specific purpose because they possessed a desirable characteristic at the same time he argued that serving said purpose required that the courts possess said desirable characteristic. While Hamilton managed to lay out both sides of this equation with admirable skill, one cannot help but feel that he and his cause would have been better served had he simply chosen one approach and put the full weight of his rhetoric behind it. They each represented a highly pragmatic position, after all, and either would surely have served to convince a receptive audience of the inherent value of the Framer’s vision for a federal judiciary.

There was any number of practical reasons to protect the autonomy of the federal courts of the United States. They were, as Hamilton so often pointed out in Federalist No. 78, bound to comprise the weakest branch of the federal government. Possessing only the power to render judgement, and wholly lacking the ability to enforce the same, the judicial branch was undeniably vulnerable to being either ignore or nullified by its co-equal counterparts. Allowing federal justices to serve during good behavior would permit them to more effectively hand down verdicts without fear of legislative or executive reprisal, censorship, or dismissal. On their own, these two arguments – precedent and pragmatism – speak strongly in favor of the Framer’s decision to grant federal justices life tenure. Without much trouble, Hamilton could have laid them out at length, established at least one characteristic of the federal judiciary on reasonably secure footing, and then proceeded to advocate for judicial review as a kind of rhetorical addendum. “Having already agreed that the possession of life tenure serves to benefit the judicial authority and the American People in equal measure,” he might well have said, “it will be further demonstrated that even greater advantage may be derived from authorizing the duly-constituted federal courts to declare certain acts contrary to the Constitution null and void.”   

On the other hand, Hamilton might have – with equal effectiveness – chosen to wholly dedicate Federalist No. 78 to making the case that the federal judiciary was the only branch of the proposed national government capable of adequately performing the supervisory function that the very existence of a written constitution demanded. Every law, decree, and ruling put forward by a government under the auspices of an explicitly codified charter must, of essence, conform to said charter. Were it otherwise – were legislatures and executives free to alter or ignore provisions of the document from which they derived their authority – the constitution in question would be effectively rendered moot. Late 18th century Americans plainly did not want this to happen. Not only had (almost) every state in the union made a point of drafting a written constitution within a decade of declaring independence from Great Britain, but eight states out of thirteen – at the time No. 78 was published in May, 1788 – had also agreed to adopt the proposed federal constitution. Consequent to this clear affection for a codified supreme law, some kind of mechanism was clearly required that could ensure the conformity of government action with the stated provisions of the relevant constitution.

The federal legislature, Hamilton ably argued, was poorly-suited to the task – its members were unlikely to take steps that might limit their own power, and they would too easily perceive an advantage in bending their interpretation of the Constitution to suit the desires of their constituents. The federal executive – though Hamilton hardly saw fit to mention – was similarly likely to seek an enlargement of its authority if awarded the right to review the constitutionality of its actions, and similarly party to the seduction of popularity. The federal judiciary, therefore, represented the only real option. As veritable masters of the law they were peculiarly-equipped to discern the relevant points of agreement or conflict between statue and constitution, and they also lacked the means to exert their authority without the aid of another branch of government. This weakness and learnedness made them ideal, Hamilton could quite convincingly have argued, to take on the exceedingly necessary task of lending the proposed constitution the respect and the weight it unquestionably required. Thereafter, with a subtle but skillful pivot, he could have quite easily tied judicial review to life tenure by making the case that reinforcing the judiciary with the latter – thus lending the courts even greater independence from popular discontent, legislative overreach, or executive reprisal – would greatly reinforce their ability to adequately pursue the former.

While, again, Hamilton chose not to focus solely on one or the other of the approaches detailed above – deciding rather to attack both at the same time – the basic essence of each argument can be found in the text of Federalist No. 78. There were, he very effectively argued, a number of very practical reasons why the government embodied by the proposed constitution required the aid of some kind of supervisory entity in order to function as the Framers intended. He also made a very strong case for the federal judiciary as the only logical choice to fulfil this particular role. The professional qualifications of its members placed them in an ideal position to investigate and interpret potential discrepancies between the actions of the federal government and the text of the document that gave sanction to the same. Whether this suitability was in part due to the possession by federal justices of life tenure or if it would merely have been further aided by it, Hamilton seemed unwilling to say. Nevertheless, his arguments in either circumstance were strongly presented in No. 78. The federal courts, as defined by the proposed constitution, looked the way that they looked for a number of good, sound, practical reasons. These were the kinds of arguments that Hamilton tended to favor, and doubtless he believed that his fellow countrymen would respond in kind.    

Friday, April 7, 2017

Federalist No. 78, Part III: Pragmatism

As mentioned previously, Alexander Hamilton’s Federalist No. 78 was drafted with the intention of addressing and refuting a series of criticisms that had been levelled at the proposed federal judiciary by Anti-Federalist pamphleteers. Perhaps the most damning of these written condemnations were put forward by the pseudonymous Brutus – most likely fellow New Yorker Robert Yates – in his eleventh, twelfth and fifteenth essays, each published during the early months of 1788. Brutus raised many probing questions and expressed many sincere concerns about the excess of power he perceived to be at the disposal of the proposed federal judiciary, the vague language by which that power was defined, and the resulting ability of federal justices to both enlarge the scope of their jurisdiction and subvert the will of the various state governments. The text of the proposed Constitution was entirely amenable to the latter eventualities, he stressed, and the history of the British high court system provided ample precedent for ambitious men to abuse the public trust.

Rather than address each of these points in turn – thus granting the premise of his opponents and adopting a conspicuously defensive posture – Hamilton set out in Federalist No. 78 to provide his readers with a general overview of how and why the proposed federal judiciary looked the way that it did. In so doing, he seemed to infer that there was a broader and more intuitive logic to the makeup of the Supreme Court that the Anti-Federalists had overlooked. In seeking out and magnifying all of the vague language and potential loopholes which they felt made the federal judiciary potentially dangerous, they had perhaps failed to understand the essential purpose a high court was due to fulfill and the limitations under which it would be forced by necessity to operate. To this end, Hamilton’s refutation seemed to proceed along two central avenues of attack. The first was essentially pragmatic in nature. The very existence of constitutional government demanded the presence of a high court, he variously asserted, and its success likewise depended upon it possessing certain key characteristics. The second element of Hamilton’s case in favor of the federal judiciary was conversely precedential. It was his estimation that any number of examples could be found to support the existence of a strong judiciary, independent of rival political authorities and capable to superintending the compliance of a government with the supreme law of the land. Balanced upon these twin rhetorical pillars, Hamilton’s No. 78 struck a far-sighted tone. Rather than account or apologize for the imprecise language of the relevant section of the proposed constitution, its author expressed a reasoned confidence in the balance of power that said document embodied and the practical inability of the federal judiciary to defy it.

Returning, for the moment, to the pragmatic element of No. 78, Hamilton’s core contention seemed to be that the very nature of the proposed constitution – if not the wider American fixation on constitutional government – necessitated the existence of a strongly supervisory national court. He made this case over a series of paragraphs, and via a number of fairly simple observations. The Constitution, he first explained in paragraph eight, was of essence a limited document. Like the various state constitutions that had preceded it, it contained, “Certain specified exceptions to the Legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like.” Article I, Section 9 of the proposed constitution, from which these examples were drawn, also included a guarantee of the writ of habeas corpus, a prohibition on export taxes, and a requirement that money be drawn from the Treasury only once it had been duly appropriated by Congress. These kinds of codified restrictions theoretically ensured that no single element of the government formed by the proposed constitution could ever successfully claim impunity for itself or its actions. The same document that purported to give Congress the right to declare war also prevented it from seeking retroactive application of the laws that it passed. And the same text that claimed for the President the right to command the military of the United States of American also prohibited the same authority from directing the use of federal monies without legislative approval. The affirmative powers could not be separated from the negative guarantees – to ignore one was to invalidate the other.

And yet, though the Constitution was indeed a limited document, there seemed to exist within its articles, sections, and clauses no clear mechanism by which the various limitations it placed upon federal authority might be practically enforced. While some commentators claimed that Congress – as the most representative branch, and in echo of the British principle of legislative supremacy – ought to possess the final say as to what was and was not constitutional, Hamilton regarded this eventuality to be perilously improper. There was no clause within the text of the Constitution that would have authorized such an assumption of power, he asserted in paragraph eleven of No. 78, and allowing Congress to seize it anyway would effectively render all other restrictions essentially moot. The provisions of Section I, Article 9, for instance, would mean very little if the institution they were meant to constrain also possessed the authority to determine whether or not its actions were in violation of the same. This would essentially constitute granting to Congress – by permitting it to judge which if its own laws were valid or invalid – the power of effectively rewriting the Constitution as it saw fit, a prospect that struck Hamilton as a highly illogical.

The powers that the United States Constitution delegated to the constituent institutions of the federal government, he argued in paragraph ten of No. 78, could not be put to use in a way that contradicted the written text of the same. Ratified by the various states, said document represented the sovereign and inalienable will of the American people, parcelled out and structured in order to achieve a specific set of objectives. “No Legislative act […] contrary to the Constitution,” Hamilton accordingly declared, “can be valid [,]” lest it violate the collective sovereignty – that of the people – it was erected to serve. Permitting Congress to act as the arbiter of its own actions vis-à-vis the proposed constitution would therefore have essentially constituted allowing, “The Representatives of the People to substitute their will to that of their constituents.” Not only did this represent a fundamentally unacceptable course of action – calling into question, as it did, the theoretically unassailable liberties of the American citizen – but it quite simply made no sense. Congress did not create the Constitution – indeed, it was created by it – and so could not legitimately claim the right to alter or ignore any of its provisions in the guise of evaluating the consistency of its own actions with the same.

Furthermore, if the intention of the Framers to erect a series of checks and balances within the federal government was to possess any practical significance, the power to make law and the responsibility of evaluating the conformity of law with the terms of the Constitution could not be safely joined in the same institution. Congress – notwithstanding the codified restrictions cited above – was already quite powerful, being in possession of the right to declare war, tax, and spend. Adding to its store of exclusive prerogatives the right to interpret the practical application of the Constitution would have created a potentially dangerous imbalance in its favor, to the detriment of the executive branch, the judicial branch, and the American people at large. After all, legislative tyranny – as certain overbearing state assemblies had shown over the course of the 1780s – was just as real as the kind of executive tyranny that the Continental Congress had originally been summoned to counter in the mid-1770s. In many cases having served in these same state governments prior to attending the Philadelphia Convention and having witnessed firsthand the abuses that even truly democratic majorities were capable of, the Framers accordingly endeavored to create a framework of government that balanced the powers and ambitions of each major branch against those of the other two. Granting Congress the ability to review the constitutionality of its own laws would have wrecked this balance, thereby leaving the proposed federal government vulnerable to the same kinds of indiscretions that plagued the contemporary state governments and which the Constitution had been drafted in large part to counter.

Enter the federal judiciary.

Unlike the federal executive – whose powers were too loosely-defined, and whose mandate was not suited to making probing legal enquiries – and the federal legislature – already, as discussed above, an exceedingly powerful entity, and prone to reflect the passions and impulses of the voting public – the federal court was by its very nature a chamber of study, reflection, and restraint. It was, in essence, a naturally conservative body whose members bore as their core responsibility – if not their life’s passion – an unparallelled understanding of the law. Presented with a given set of circumstances, and asked whether this statute or that precedent applied to the same – what paragraph eleven of No. 78 described as “The proper and peculiar province of the Courts” – there was no institution better suited to penetrate the minutiae, identify the fundamental principles under consideration, and deliver a verdict which reflected both the best inherited knowledge and the most practical reflection of contemporary expectations. Because the proposed constitution was to itself embody a kind of “fundamental law,” it therefore appeared to Hamilton that it too belonged to the courts, “To ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body.” In so doing, he further explained in paragraph eleven, the federal judiciary would serve as an, “Intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to its authority.” Thus, by the nature of its traditional role as the arbiter of the law, and the attendant qualifications of its membership, the federal courts appeared the best equipped branch of the federal government to superintend the constitutionality of the whole.

And yet, being particularly equipped to the task did not necessarily ensure that the federal judiciary was intrinsically more trustworthy than its legislative or executive counterparts. Congress, though well-suited to act as a dynamic reflection of the ever-changing will of the American people and their legislative needs and desires, was too powerful to also be permitted the free interpretation of the constitutional provisions explicitly intended to act as a restraint upon its actions. For the federal courts to safely take on this same responsibility, therefore, there would need to be some guarantee that its members would under no circumstances determine to construe the Constitution in such a way as to prejudice their own intentions above those of the people – or, as the case may be, “the People” – whose delegated sovereignty said document embodied. Federalist No. 78 located this guarantee in two of federal judiciary’s essential characteristics: its weakness and its steadiness. The former, Hamilton explained in paragraphs six and seven, stemmed from the paucity of mechanism at the disposal of the federal courts to see its own verdicts enforced. Whereas, he explained, the federal legislature would administer the wealth of the nation, and the chief executive was to, “Dispense the honors,” and wield, “The sword of the community [,]” the judicial branch was to possess, “No direction either of the strength or the wealth of the society [.]” Its sole power instead rested in its possession of specialized knowledge and its ability to render judgements based on that knowledge. This relatively narrow remit left little room for innovation – i.e. for rulings that significantly departed from the particulars of the case at hand – and ensured that the federal courts would be effectively dependent on the legislative and executive branches to see that its edicts were successfully implemented.

As Hamilton described this dependence – or as he characterized it, this “weakness” – in the seventh paragraph of No. 78, he seemed to understand it both as a positive quality and an inherent flaw that trusting the federal judiciary with the task of interpreting the Constitution would simultaneously benefit from and alleviate. Consider, on one hand, that because the federal courts wholly lacked the ability to see their rulings carried out absent the support of the executive and legislative branches, it would accordingly have been impossible for them to take any actions that one or both of these more democratic institutions of the federal government did not in some capacity agree with. In this sense, the federal judiciary could be trusted because its will could only ever be felt as a result of cooperation with at least one of its two federal counterparts. The same simply could not be said of Congress or the Presidency, both of which possessed more than enough coercive mechanisms to independently assert their respective wills. On the other hand, this lack of coercive mechanisms – i.e. responsibility over appropriations or the use of military force – on the part of the federal judiciary made it all the more imperative that it possess some means of preserving its autonomy.

Without the power to nullify statutes deemed incompatible with the Constitution, the judicial branch could quite easily have been swamped or subsumed by its theoretically co-equal counterparts. Conversely possessed of this power, it could conceivably preserve its desired autonomy by ruling in favor of or against this statute or that decree, thus playing the legislative and executive branches against one another. This kind of balance of power – simultaneously precarious and remarkably stable – was very much in keeping with what the Framers envisioned, if the explanations of men like Alexander Hamilton and James Madison are any indication. “Ambition must be made to counteract ambition,” the latter famously declared in Federalist No. 10. In practice, this meant that each major branch of government would possess some sort of check on the other two and that their members would feel every motivation to use them. Lacking any alternative means to maintain their autonomy, the federal courts would embrace the power to interpret the Constitution as a means of ensuring their own continued survival. In this they would at times be aided by the legislative branch and at others the executive branch, depending on whose actions were being censured or nullified. While each of these institutions would in the short term claim their own empowerment and the frustration of their rivals as a victory in itself, the American people receive the greatest advantage from this outwardly fractious state of affairs; stability, balance, and – trite though it may seem to say it – liberty.