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 18^th 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.