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, Part 2 HERE, and Part 3 HERE.

In Federalist #78 and Federalist #81, Alexander Hamilton sought to provide a point-by-point rejoinder to Brutus’ charges. I covered the first three points in Part 3 of this series.

Judicial Review as a Shield

Hamilton sought to demonstrate that judicial review would serve to protect two exposed groups. The courts, he said, would operate “as the bulwarks of a limited constitution against legislative encroachments.” Hamilton attempted thereby to reassure the states that the federal judiciary, far from being a threat to their sovereignty, as Brutus would have it, would act as their guardian in striking down every national attempt to encroach on state prerogatives.

A second exposed group was that of minorities, and here, once again, the exercise of judicial review would operate to protect “the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, … occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

Judicial independence was vital if the courts were to act against the legislative will in defending the rights of the states and of individuals. “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.”  Judicial independence required permanency of appointment. “Inflexible and uniform adherence to the rights of the [states under the] Constitution and of individuals” could not be expected “from judges who hold their offices by a temporary commission.”

But, of course, Brutus had acknowledged all along that appointment during good behavior was essential if judges were to enjoy that security and independence that would enable them to judge fairly and without fear of recrimination. This was not the issue. By raising the matter of tenure of office, Hamilton was raising a straw man to knock down and score points. Permanency in office did not preclude the judges from dominating the legislature or executive and dictating to these branches of government which policies could stand and which could not.

Judicial independence, Brutus maintained, was vital, but it did not entail the right of judicial domination. The distinction between judicial review and judicial supremacy was clear. While the former allowed, and even required, that the court strike down any law that was manifestly contrary to the express provisions of the Constitution, it did not empower the court to assert the unconstitutionality of a law on the basis of a narrow and particularly subtle interpretation of the relevant constitutional provision.

As Corwin has said:

It is fairly evident that the Philadelphia Convention intended to provide … a method for enforcing the direct prohibitions of the Constitution on Congress; but by the same token, there was originally a clear logical implication against judicial review of broader range.

(Edward S. Corwin “Court Over Constitution: A Study Of Judicial Review as an Instrument Of Popular Government”)

In effect, Hamilton took Brutus’ charge that the exercise of judicial review by the Supreme Court would inevitably lead to the emasculation of the states and the consolidation of the country under one central government and cited judicial review as the best guarantee against national encroachment on state authority. He skillfully turned the tables on Brutus by brandishing judicial review as a foil against national aggrandizement, while conveniently forgetting that it could also serve to strike down state intrusions on national sovereignty.

Only in Federalist #80 did Hamilton advert to this power over state legislation. But he illustrated it solely with reference to such clear-cut prohibitions as the imposition of duties on imported articles and the issuance of paper money. Of necessity, he said, the federal courts would have to be empowered “to over-rule such as might be in manifest contravention of the articles of union.”  Implicitly, Hamilton was suggesting that anything less than a “manifest contravention” of the Constitution would not encounter judicial disallowance. (The latter role would, of course, be precisely the nemesis of state authority to which Brutus referred.)

At the same time, Hamilton sidestepped the central charge of Brutus that the Constitution, by allowing the judges to interpret the Constitution according to its “spirit,” effectively conferred on them absolute sovereignty to tell the other branches of the national government what the Constitution permitted and what it did not. In Federalist #78, Hamilton simply declared that no one could suspect that the courts would attempt to impose their will on the co-ordinate branches of government, but did not explain why they would not.

That analysis he left for Federalist #81.

Judicial Supremacy Denied

Hamilton opened his discussion with a long extract, a sort of precis, of the Antifederalist argument–i.e., that of Brutus:

The authority of the proposed supreme court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the constitution, will enable that court to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The parliament of Great-Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the supreme court of the United States will be uncontrollable and remediless.  (Federalist 78)

In dismissing this conclusion, Hamilton asserted that the argument “will be found to be altogether made up of false reasoning upon misconceived fact.”

Judicial Review Limited to Explicit Violations.

“In the first place,” said Hamilton, “there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state.”  Of course, Brutus had never said that the Constitution explicitly authorizes the judges to interpret the Constitution according to its spirit. It was sufficient that this power was nowhere denied.

The Unsuitability of Judiciary as Part of Legislature.

Perhaps, said Hamilton, the Antifederalist complaint is directed to the fact that the Supreme Court was constituted as a separate body rather than “being one of the branches of the legislature, as in the government of Great Britain and that of the State [of New York].”  In Britain, members of the House of Lords lay peers no less than law lords, were empowered to rule on an appeal from a lower court and to void the decision. And Article 32 of the 1777 New York constitution provided for appeals “for correction of errors” to be heard by a court composed of “the president of the senate, the senators, chancellor, and judges of the supreme court, or the major part of them,” but denying the judges “a voice for … affirmance or reversal” of their earlier decision.

Here Hamilton was finally addressing Brutus’ primary complaint, that the national judiciary was totally free of accountability, in contrast to the way appeals were handled in Great Britain, for instance. The case of New York had not been mentioned by Brutus, but anyone familiar with the status of the judiciary there was undoubtedly aware that it paralleled the British example in conferring on the legislature–or on part of it–supervisory authority over the judiciary. In both instances, while the judges were free to express their views in matters of appeal, the final decision did not rest with the judges alone, but with the representatives of the people who were ultimately accountable to the electorate.

In response, Hamilton argued that locating the judiciary within the legislature would come close to violating, at least partially, the separation of powers principle that was regarded by the Antifederalists as sacrosanct. It would also place the judiciary in a body marked by faction and politics, a most unsuitable setting for judicial determination. Moreover, it was even a “greater absurdity” to suggest that men “deficient” in knowledge of the law should be allowed to revise decisions reached by men expert in the law. All these considerations, said Hamilton, undoubtedly influenced most of the other states, other than New York, to commit the judicial power not to a part of their legislatures, but to a distinct and separate body. And in any case, the national legislature will be as free as the legislatures of these states to enact flesh laws to modify the decision of the court in future cases.

Needless to say, none of these answers effectively dealt with Brutus’ fundamental complaint that the authors of the Constitution had unwittingly created an institution which, in contrast to all other institutions under the Constitution, was totally free of checks and balances–and free, that is, of the basic requirement of any ordered system of government: accountability.

Bob Fiedler
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