At about this time in 1788, Alexander Hamilton (a.k.a. Publius) was writing Federalist Paper No. 81. His essay would later appear in a bound volume with other Federalist essays (see below).
This paper honestly might leave you rolling your eyes a bit at the current state of affairs.
Hamilton is still discussing the judiciary and concerns about the Supreme Court. The Constitution’s opponents were worried that the Court would end up being superior to the legislature. Hamilton dismissed these arguments as “made up altogether of false reasoning upon misconceived fact.”
“[T]here is not a syllable in the plan under consideration,” Hamilton wrote, “which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution . . . .” Of course, he acknowledges, the “Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
Hmm. You have to wonder what Hamilton would say today. Would he be so blithe about expecting the Court to stay true to the text of the Constitution, steering clear of interpretations made “according to the spirit of the Constitution”? (How, exactly, does the “spirit” of the Constitution differ from the “penumbras” of the Constitution anyway?)
Hamilton theorized that perhaps some of the fear about the Court stemmed from the fact that it was a “distinct body of magistrates, instead of being one of the branches of the legislature.” The Convention did not create such a structure, of course, because it was striving for separation of powers. Hamilton defends the necessity of this separation: “From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them . . . .”
In sum, Hamilton believes that the “supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom.” Judicial misconstructions may occasionally happen, but “they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” After all, these judges are impeachable. Hamilton believes that the power of impeachment “is alone a complete security.”
I guess he was assuming that legislators might impeach judges who dared to make their own laws?
Hamilton next turns to the existence of the lower courts. Why create them, instead of relying upon the state courts? The state courts are surely competent, but local tribunals could be too influenced by “local spirit” to objectively hear cases with “national causes.” Hamilton also thinks that a system of federal courts will facilitate greater access to appeals.
Hamilton continues, at length, about the distribution of judiciary authority between the lower courts and the Supreme Court. He concludes that the judiciary “has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature.” The powers of the court have been carefully partitioned and the existence of “appellate jurisdiction does, in no case, ABOLISH the trial by jury,” which some were then worried about.
Logistical note for those who care:
As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).