In
addition to hinting at the tactical significance of the state ratifying
conventions within the broader debate over the proposed constitution, certain
passages of Federalist No. 78 also seem to draw attention to an element of the
judicial review process with which its author, Alexander Hamilton, appeared at
least mildly uncomfortable. Specifically, by addressing the role to be played
by federal courts in assessing the conformity of statute with the text of the
Constitution, comments rendered in paragraphs eleven, thirteen, and fourteen arguably
indicate a degree of unease or an effort on Hamilton’s part to avoid discussing
the interpretive aspect of judicial review – likely because he felt it would
ultimately do harm to his argument in its favor. Whereas it cannot be denied
that federal justices, in the course of their duties, must at times seek to
interpret the meaning of certain passages of the Constitution whose
significance or application are not otherwise clear, the relevant sections of
No. 78 seemed to describe this same process in broadly simplistic and
unambiguous terms. Reflecting upon the controversy which has long since
attended certain Supreme Court rulings, and the recurrent questions which have
arisen in public discussion over the seemingly outsized role individual
justices seem to play in shaping the laws of the United States, Hamilton’s
evident sense of discretion might be forgiven (or at least understood). That
being said, it remains noteworthy that anxiety over this interpretive aspect of
judicial review has evidently been an element of American public discourse
since the inception of the Constitution. It is also rather striking that
Hamilton, in attempting to argue in favor of even the concept of judicial
review, was evidently able to foresee the clamour that would arise and took
steps to avoid stoking it.
Returning
to specifics for the moment, consider the passage from the eleventh paragraph
of Federalist No. 78 which asserted that, “The interpretation of the laws is
the proper and peculiar province of the Courts. A Constitution is, in fact, and
must be regarded by the Judges, as a fundamental law. It therefore belongs to
them to ascertain it meaning [.]” This plain declaration would seem to gloss
over certain complicating elements of the process it described. If, as Hamilton
here seemed to assert, it was set to form a key part of the duties of the
federal courts to ascertain the meaning of the Constitution, at least two
significant implications would seem to arise. First, Hamilton’s admission that
the Constitution would at times be in need of clarification or interpretation
would appear to indicate that the plain text of it was not necessarily clear
enough or comprehensive enough to function purely as written. In fairness, it
would indeed be unrealistic to expect any codified governing document to be
wide-ranging enough to confront every possible eventuality without its officers
occasionally resorting to some degree of re-articulation. Nevertheless,
contemporary critics of political centralization – i.e. the Anti-Federalists –
would doubtless have seized upon an admission of the same as evidence of their
opponents’ desire to seed the proposed constitution with enough vagaries and
loopholes so as to afford a re-configured national government the ability to
grant itself whatever powers its proponents desired. Without making any claims
as to precisely what Hamilton himself desired on this score, he at least
appeared conscious that support for the Constitution would best be drummed up
by avoiding undue discussion of such substantive ambiguities.
The
second implication that would seem to arise from the cited passage of the
eleventh paragraph of Federalist No. 78 – and which appeared to be echoed and
reinforced by sections of paragraphs thirteen and fourteen – concerns the
particular role to be played by the various officers of the federal courts. If,
as Hamilton stated, federal judges would be solely responsible among the
judiciary of the United States for declaring the definitive meaning of a given
section or clause of the Constitution, it would seem to follow that the legal
significance and practical application of said document would depend in large
part upon the individual perspective of the judges in question. In addition to
professional experience and knowledge of the law, therefore, the particular
ideology, philosophy, education, or even personality of a federal justice would
all seem set to weigh on how certain passages of the Constitution were read and
the manner in which they were applied. It would, once again, be impossible to
deny that this is in fact the case. In the history of the United States Supreme
Court, there have been liberal Justices and conservative Justices, and within
these broad categories strict constructionists, loose constructionists,
originalists, and purposivists. Indeed, contrary to what any one of these
schools of thought would claim, there has never been any single legitimate lens
through which to view the Constitution. And while public discontent can and
does arise in response to particular readings or verdicts, the authority of the
Supreme Court to interpret said document – by whatever means its individual
members determine – has never been substantially challenged.
That
being said, and once again perhaps in fear of the furor he believed would arise
if he openly acknowledged the role individual personality had to play in the
operation of the proposed constitution, Hamilton seemed determined in the text
of No. 78 to characterize the interpretive role of the federal courts in very
broad terms. In the event that two statutes, he accordingly explained in
paragraph thirteen, each possessing the force of law were found in any way to
conflict or negate one another,
It is the
province of the Courts to liquidate and fix their meanings and operation; so
far as they can, by any fair construction, be reconciled to each other, reason
and law conspire to dictate that this should be done; where this is
impracticable, it becomes a matter of necessity to give effect to one, in
exclusion of the other.
Hamilton’s purpose in citing this
legal principle was quite clearly to draw a comparison between the customary
role of the judicial establishment within the Anglo-American tradition and the
expanded role he envisioned for them under the proposed constitution. As, in
the normal course of events, it fell to the courts to reconcile conflicting
statutes, so would it fall to the federal judiciary to reconcile a given
statute with the text of the Constitution when the two appeared to be at odds.
Once again, however, Hamilton’s evident attempt to put a straightforward gloss
on the inherent complexity of judicial review arguably raised more questions
than it settled. What, for instance, did he mean by the term “fair
construction?” Surely he must have been aware that what seemed a fair
reconciliation of a given law with the Constitution to one group of observers
would appear manifestly unfair to another. And how is it that “reason and law”
can conspire to dictate that such and such a thing should be done? People
reason differently, and perceive the purpose and significance of law
differently. Granting that the Constitution was intended to operate as an
ideologically neutral and non-partisan governing framework, it would seem the
height of either naiveté or short-sightedness to imagine that a clear consensus
would ever exist as to how and why its various sections and clauses ought to
operate.
It
further seems worth questioning what Hamilton meant when he wrote that the
reconciliation of conflicting statutes – and of a statute that conflicted with
the proposed constitution – would sometimes be impracticable, and that in such
instances it was “a matter of necessity” that one give way to the other. Who,
for want of any indication on that score, would decide in this context what was
impracticable and what was necessary? By what measure would these
determinations be made? As with his invocation of “reason and law,” Hamilton
here seemed determined to strip his characterization of the role of the
judiciary of any hint of individual discretion. Rather than admit that a judge
– a frail, flawed human being whose legal expertise arguably could not be
separated from their personal inclinations – would be responsible for deciding
what was possible, what was necessary, what law and reason dictated, and what constituted
a fair construction, he instead took rhetorical refuge in inactive phrases which
seemed to treat the process of judicial review as though it involved little
more than acknowledging the primacy of some objective truth.
An additional passage from No. 78
would seem to confirm this. Having discussed in paragraph thirteen the
supposedly self-evident logic in newer statutes taking precedence over older
statutes when the two were to be found in conflict, Hamilton countered in
paragraph fourteen by stating that the relationship between ordinary law and
the proposed constitution would by necessity function in the opposite manner.
Whereas newer statutes would presumably represent the most accurate and
up-to-date summation of the popular will, the supreme governing document under
whose auspices said statutes were issued would always remain superior in its
claim to the approbation of the people and the support of their institutions.
To that end, Hamilton wrote that, “The nature and reason of the thing indicate
the converse of that rule as proper to be followed.” As with the passage cited
above, this outwardly simply clause seems to deny the complexity of the
relationship it endeavored to describe. Not only did it fail to explain precisely
what “the nature and reason” of a potential conflict between a given statute
and the proposed constitution was meant to refer to, but it also neglected to
mention to whom such matters would ultimately be indicated. Thus phrased,
however, Hamilton could conceivably avoid having to delve into what was perhaps
the most frightening aspect of judicial review: individual discretion.
Justices, after all, would be responsible for determining whether the terms of
a statute warranted review, and would furthermore decide precisely what said
review would entail.
In fairness to Alexander Hamilton,
and to the members of his audience whose sensibilities he was presumably
endeavoring not to offend, the power that the practice of judicial review has
bestowed upon Supreme Court Justices is in concept more than slightly alarming.
The ideological inclinations of certain members of the court have, over the
centuries, led to readings of the Constitution, and of statutes under
consideration, which have variously resulted in African-Americans being denied
the right to citizenship (1857), the disestablishment of racially-segregated
public education (1954), the increased ability of corporations to donate large
sums of money to political parties or individual candidates (2010), and the
nationwide legalisation of same-sex marriage (2015). While some of the verdicts
in these cases were acclaimed by a majority of the sitting members of the
Court, others were carried by a much slimmer margin – Obergefell v. Hodges
(2015), in fact, saw the plaintiff’s case confirmed by a single vote. However
one feels, emotionally or ideologically, about any of these cited decisions, it
would seem fair to characterize the ability of a single person within an
institution of the United States government to uphold or overturn state or
federal law as at least appearing to be somewhat at odds with the core
principles of representative democracy. If the will of “the People” is the only
true font of legitimacy within the political and legal framework of the United
States of America, then presumably the will of any single person ought never to
be capable of setting a binding standard of practice not otherwise alterable.
Hamilton, in short, may be forgiven for his reticence, if indeed this was an
outcome he possessed foresight enough to recognize.
And
yet, Hamilton’s possibly justified anxiety notwithstanding, the right of individual
members of the federal judiciary to interpret the Constitution by whatever
means they deem appropriate or necessary has since become an accepted aspect of
judicial review in the United States. Granting that nearly every major decision
handed down by the federal courts, and in particular those with margins as
close as Obergefell v. Hodges, meets with some degree of hemming and hawing
from the discontented, the American people have largely come to trust the
judges appointed by their public servants to exercise tact, prudence, and integrity
when performing their duties. This quality of public confidence – and with it a
tacit acceptance that personality is an unavoidable element of any example of
public decision making – has effectively sustained the authority of the
judicial branch in spite of widespread opposition to certain controversial
verdicts, and fully normalized its role as the sole legitimate arbiter of the
United States Constitution. Rather than fatally and finally recoil at the
audacity of the claimed right of unelected jurists to dismiss legislation that
was drafted and approved by their own elected representatives, the American
people have evidently come to acknowledge that disagreement with a given
verdict handed down by the federal courts does not necessarily entail rejecting
the discretionary right of the same. That is to say, however much some citizens
of the United States might disagree with the substance or implications of a
Supreme Court ruling, very, very few of them would honestly argue that the
authority of the Court itself is invalid.
In
spite of Hamilton’s evident fear of public distress over the interpretive
aspects of judicial review – if his rather mechanistic portrayal of the same in
No. 78 is any indication – he nonetheless appeared to understand on some level
that widespread acceptance of federal court decisions would be a likely
consequence of that same institution’s particular weakness. As discussed in a
previous entry in this series, this weakness was one of the reasons Hamilton
believed that the judicial branch of the proposed federal government posed no
real threat to either its legislative or executive counterparts. “The
Judiciary” he wrote to that effect in paragraph six, “has no influence over
either the sword or the purse; no direction over the strength or the wealth of
the society; and can take no active resolution whatever.” In subsequent
sections of No. 78 – while occasionally, as noted, appearing to work at
cross-purposes – he went on to explain that this manifest lack of agency would
permit the federal courts to play its co-equal counterparts against one
another, buttress the system of checks and balances built into the structure of
the Constitution, and generally help promote a sense of equilibrium and balance
within the newly-reconstituted national government. What Hamilton conversely did
not say, but what was substantially implied, is that this highly dynamic
relationship may also have had the potential to secure the acceptance of the
federal judiciary far more effectively than if it could take what he described
as “active resolution.”
Consider,
to that end, a federal judiciary which combined the power of judgement with the
power of enforcement – say, by allowing the courts to wield some form of
policing. Because this would render the federal courts an authority unto
themselves, their substantially – but necessarily – undemocratic nature would
doubtless be highlighted every time they handed down a ruling that met with
wide-ranging public discontent. Unable to point to the cooperation of either
houses of Congress, the Presidency, or the various states – and indeed very
likely to be opposed by the same – this theoretically assertive federal
judiciary would likely find itself widely distrusted, under constant attack, or
rendered moot by means of constitutional amendment. As discussed above, the
discretion possessed by individual justices – combined with their status as
appointed officials – rendered their authority all too easy to call into
question. Turning reasoned judgement into judicial fiat would likely have
pushed the envelope of public acceptance just far enough to make plain what
Hamilton seemed to fear; that is, a federal judiciary whose members were seen
as aloof, dictatorial, and – shudder – perhaps even aristocratic.
Forcing
the federal courts to rely on the legislative and executive branches of the
national government comparatively offered the judicial branch the chance to
effectively build its legitimacy upon a platform of association. Whereas a judiciary
with law enforcement authority might very easily alienate itself by claiming a
mandate from the Constitution rather than from “the People” or their elected
representatives, a weak judiciary that, as Hamilton wrote in paragraph six of
No. 78, “Must ultimately rely upon the aid of the Executive arm even for the
efficacy of its judgements [,]” would comparatively find great advantage in
allowing its every judgement to become an opportunity for institutional
cooperation. On occasions when Congress opposed a particular verdict, this
would mean relying upon the Presidency and the various institutions within the
executive branch to enforce the terms thereof. Conversely, whenever the federal
executive chose to set itself against a given ruling, the judiciary would be
forced to depend on the aid of Congress and the numerous mechanisms at its
disposal. In either case, while building stronger bonds with one institution or
another, the end result for the federal courts would presumably be the same:
every judgement it handed down would carry with it the approbation and material
support of a more democratic branch of government.
What
this means in a practical sense is that every Supreme Court ruling that had
been rendered throughout the history of that body represents, in its effects
and its lasting significance, a collaborative effort on the part of any number
of state and federal institutions. The Court has always needed the cooperation
of the Department of Justice, or Congress, or state police agencies, or state courts
to ensure that its verdicts are carried out, and in the process has attained a
degree of public acceptance that seems to belie the controversy its activities
can often generate. And while presidents, congressional majorities, and state
governments have not always agreed with the letter or spirit of every Brown v.
Board of Education or Roe v. Wade, the default position of all of these
institutions has become one of at least formal acceptance. Rather than attempt
to dismiss out of hand verdicts deemed undesirable or invalid, critics –
individual or institutional – instead resolve to seek recourse through the
judiciary itself. This “wait and see” approach is arguably a viable one
because, as Hamilton asserted in No. 78, the federal courts are not a force unto
themselves. The American people elect a President and a Senate who nominate and
confirm judicial candidates, respectively, and who cooperate with other state
and federal institutions in ensuring that the verdicts handed down by the
courts are respected and enforced. Critics, therefore, are poorly equipped to
decry what they perceive as the arbitrary nature of federal court rulings
because every Supreme Court ruling represents a communal effort. Whether a
single justice cast the deciding vote or the decision was unanimous, the
overall process is by design shaped, guided, and conditioned by any number of
institutional expressions of the popular will.
Think
of it like this. A person might celebrate a Supreme Court ruling one day
because it aligns with their personal ideology or moral code, and disagree with
a verdict laid down by the same body a week later for the same basic reasons.
They are, of course, entitled to react however they care to, however their
perspective and personality inclines them to, and to make known their
displeasure or support by whatever legal means at their disposal. What they
should not do, however, if they don’t want to call into question the legitimacy
of verdicts they approve of, is attack the integrity the Court or of specific
justices simply because a ruling has been handed down that they find to be
offensive. The fundamentally cooperative nature of Supreme Court verdicts –
every single one of them – grinds against any such “pick and choose” approach.
Either one accepts the legitimacy of the federal courts or one does not. And
while the former may fundamentally amount to a strategic consideration – people
respect rulings they disagree with because they want their opponents to follow
suit – the Court and the American people have stood to benefit all the same. Supreme
Court rulings thus possess the power of constitutional law because they are
supported by other institutions of government, and because the citizens of the
United States accept that they do. While the emergence of this status quo
doubtless seemed uncertain at the time Hamilton penned Federalist No. 78 at the
tail end of the 18th century, certain aspects of the text therein do
appear to suggest that such was indeed his unexpressed hope.
Anyway, that’ll do me. Check it out for yourself, why not?
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