- by New Deal democrat
This is a follow-up on yesterday’s post regarding the history of the Judiciary under republics. In that post I pointed out that the concept of an independent judiciary is a modern one that started in the era of Britain’s Glorious Revolution of 1688, and was radically expanded by the US Constitution.
How the framers envisioned the US Supreme Court fit into the scheme of three independent branches of government was set forth in The Federalist Papers numbers 78 through 83. Of those, 3 are not relevant to this discussion: Number 80, which deals with types of court jurisdiction, Number 82 on relations between the State vs. Federal judiciaries, and Number 83, explaining that the Constitution does not abolish trial by jury.
Below I quote extensively from Federalists numbers 78, 79, and 81, all written by Alexander Hamilton, grouping those quotes by subject matter, with cites at the end of each quote. I discuss the historical problems with Hamilton’s arguments thereafter.
Placing the Constitution’s plan in historical context:
“That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested.... The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature.” (No. 81)
“According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR .... The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.: (No. 78)
Comparing the US Supreme Court vs. the UK’s House of Lords as court of final appeal:
“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.” (No. 81)
“the particular organization of the Supreme Court [is] being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. ....” (No. 81)
“Considerations [of legal specialization and acumen of judges vs. legislators should] cause us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.....” (No. 81)
The Judiciary would have to rely on the Executive to enforce its judgments:
“In the first place, 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. I admit, however, that 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.... (No. 81)(My emphasis)
“The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution [of New York] in respect to our own judges.” (No. 79)
“It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then 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. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.” (No. 81)(My emphasis)
In summary, lawyers selected for their lifetime of skill and acumen in understanding past precedents would essentially engage in statutory interpretation according to the long-established rules for such interpretation. Any errors they made would be no more than an “inconvenience” that would never “affect the order of the political system.” In any event, they would be powerless to enforce their decisions, and would have to rely on the Executive. Further, their errors they made could be remedied by Constitutional Amendments. Finally, if they did attempt to act like superlegislators, they would suffer impeachment and removal from office.
At the time Hamilton made these arguments, there was no historical record against which to compare his conclusions. Over 200 years later, the record is extensive, and it shows that the objection that the court would act like a tyrannical superlegislature was well-founded.
Note in particular that although Hamilton *says* that the argument that the court would act like a superlegislature is unfounded, he never actually *engages* with the argument, but simply states that the Constitution does not “directly” authorize such a result, and that if the argument is correct, it militates against an independent Court altogether; and concludes that the processes of Constitutional Amendment and Impeachment are sufficient bulwarks in any event.
To the contrary, the Court’s decisions about voting rights and more broadly civil rights, for good or ill, have had major impacts on everyday life. Its radical Dred Scot decision was a major precipitating factor leading to the Civil War, leaving 700,000 dead in its wake. Only thereafter, and only with the Confederate States being excluded from the Constitutional process were the 13th, 14th, and 15th Amendments able to be passed. For the vast majority of its subsequent history, the Court has manifested hostility to the 15th Amendment in particular. And so long as a Justice’s views are aligned with those of at least 1/3+1 of the Senate, impeachment is a dead letter.
In short, it turns out that the objection to the US Constitution’s treatment of the Supreme Court quoted above by Hamilton in Federalist Number 81 turns out to have been well-founded.