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.