This is the third article in a series on “The Struggle for Ratification: Advocates and Opponents Debate Judicial Review.” You can read Part 1 HERE and Part 2 HERE.

With reference to Federalist No. 78, it is important to note that it presents an answer to the question of how to react to federal aggrandizement of power that is very different from the one provided by Hamilton to the same question earlier in the Federalist Papers. In Federalist No. 33, he wrote:

If the Federal Government should overpass the just bounds of its authority, and make tyrannical use of its powers; the people whose creature it is must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify….

…[A]cts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies.., will be merely acts of usurpation and will deserve to be treated as such. (Federalist 33)

There is not a word here about judicial review or the role of the courts in striking down legislative acts violating the bounds of national authority. Redress lies with the people alone.

Only after Brutus published his thesis on judicial supremacy did Hamilton proceed to advertise his view that judicial review could serve as a means of forestalling national encroachment on state authority. In effect, Hamilton seized on Brutus’ argument and, while denying the cataclysmic consequences Brutus predicted, adapted the argument to highlight the role of the court as a complete answer to the danger of national aggrandizement.

In Federalist Nos. 78 and 81, Hamilton sought to provide a point-by-point rejoinder to Brutus’ charges.

Hamilton’s Rejoinder to Brutus’ Charges

1. The Virtue of Appointing Judges to Serve “During Good Behavior.”

To Hamilton, the Antifederalists’ criticism of this term of office for judges was but a “symptom of the rage for objection which disorders their imaginations and judgments.” This term of office for members of the judiciary represented, in fact, “one of the most valuable of the modern improvements in the practice of government.” If in a monarchy it was “an excellent barrier to the despotism of the prince; in a republic it [was] a no less excellent barrier to the encroachments and oppressions of the representative body.” Hamilton sought to allay the fears of an activist judiciary. In a government composed of “different departments of power… the judiciary, from the nature of its functions, will always be the least dangerous [branch] to the political rights of the Constitution.” While the executive “holds the sword of the community,” and the legislature “commands the purse,” the judiciary has “no influence” over either the sword or purse, and “can take no active resolution whatever.” Having “neither FORCE nor WILL, but merely judgment,” it was dependent on “the aid of the executive arm even for the efficacy of its judgments.” “Permanency in office,” said Hamilton, is vital to its “firmness and independence,” to enable it to pronounce “all acts contrary to the manifest tenor of the Constitution void.” Under a limited constitution, where certain actions are proscribed, if the court were not to have this power “all the reservations of particular rights or privileges [enumerated] would amount to nothing.

Of course, Brutus had stated that he could not conceive of any alternative to judges serving for life. “I do not object to the judges holding their commissions during good behavior. I suppose it a proper provision provided they were made properly responsible.” However, granting the judges the power, as Hamilton would have it, to pronounce acts contrary to the “manifest tenor” of the Constitution void, was to grant them supremacy. No greater power exists in one person over another than the authority to make the second person’s act null and void, so that the will of the first predominates.

This absolute veto power in the judiciary imparted unlimited dominance over the other two branches, and Hamilton’s references to the power of the purse or the sword were mere platitudes, since of what use are these “active” powers if they cannot be exercised except with the consent of the Court? Absent restrictions on the judges’ unbridled freedom of action, there was no reason why they should not dictate to, and completely dominate, the other branches of government. To this, Hamilton took exception.

2. Judicial Review Does Not Mean Judicial Supremacy.

Declaring the acts of another branch of government void, said Hamilton, does not mean that the one making the pronouncement is necessarily supreme. It does not suppose “a superiority of the judicial to the legislative power.” Since a constitution emanating from the people “is, in fact, and must be regarded by the judges, as a fundamental law” if there is “an irreconcilable variance” between the act of the legislature and the constitution, the judges have no choice but to prefer the constitution to the statute, “the intention of the people to the intention of their agents.”

This argument was mere casuistry on Hamilton’s part, for several reasons. For one thing, what makes the judges more faithfully representative of the people than the elected “agents” of the people? If the latter consider their action to be consistent with the Constitution, from whence do the judges derive superior title to be “acting on behalf of the people” and declare it inconsistent? Indeed, the legislative “agents” are accountable to the people for their decisions, while the judges are not. So why should one assume that the determination of the judges is more authoritative and faithful to “the intention of the people” than that of their elected representatives? Above all, what would prevent the judges from asserting that there was a contradiction between a statute and the Constitution when on the face of the statute no such contradiction was apparent? Moreover, granting the judges the last word was subversive of the basic principle of republican government since it removes from the people, the ultimate judges, the right and the power to react and to rectify what they regard as a misreading of the constitution.

All of this had appeared in the final paragraph of Brutus’ essay No. 15 dealing with the judiciary.

Had the construction of the constitution been left with the  legislature, they would have explained it at their peril; if they  exceed their powers, or sought to find, in the spirit of the  constitution, more than was expressed in the letter, the people  from whom they derived their power could remove them, and  do themselves right; … A constitution is a compact of a people  with their rulers; if the rulers break the compact, the people  have a right and ought to remove them and do themselves  justice; but in order to enable them to do this with the greater  facility, those whom the people choose at stated periods,  should have the power in the last resort to determine the  sense of the compact; if they determine contrary to the understanding  of the people, an appeal will lie to the people at the  period when the rulers are to be elected, and they will have it  in their power to remedy the evil; but when this power is  lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm. (Brutus 15)

Furthermore, according to Brutus, it was vain to claim that declaring the acts of Congress void did not signify judicial superiority; in fact, that organ of government qualified to pronounce the last word exercises dominance:

[T]he judges under this constitution will control the legislature, for the Supreme Court are authorized in the last resort, to determine what is the extent of the powers of Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment. (Brutus 16)

In reaction to this, Hamilton declares:

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature…. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. (Federalist 78)

This, he says, would only go to show that there should be no judges “distinct” from the legislature. Hamilton himself, however, offers no suggestion on how to forestall judges exercising WILL instead of JUDGMENT.

Bob Fiedler
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