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.