Federalist Papers Summary 81
The Federalist Essays Summary No 81: Alexander Hamilton May 28, 1788
This paper returns to the objection that the Supreme Court might become activist and there being no remedy for such actions, and after that discusses the partitioning of the judiciary authority between the different courts. The clause being investigated is “The judicial power of the United States is to be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish”. He claims the only objection is whether this court should be a distinct body or a branch of the legislature. He then summarizes the objection and gives the rebuttal which, because of its importance today, a significant portion of the arguments is included.
According to Hamilton the objection goes like this: Since the authority of the court will be superior to 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 unprecedented and dangerous. In Britain and in several states the legislature can rectify by law the exceptionable decisions of their courts but the errors and usurpations of the supreme court will be uncontrollable and without remedy.
Hamilton’s rebuttal goes like this: There is nothing in the Constitution that directly gives the courts the power to construe the laws according to the spirit of the constitution or gives them any greater latitude than that of any state court. But maybe the objectors want a body of magistrates to be part of the legislature as they are in Britain but this goes against the separation of powers that is required by these same objectors. Even if the judging body was only a part of the legislature and thus somewhat separated it would still be a concern if the spirit that contributed to making the laws was part of the spirit that interpreted them. Further, decisions from magistrates with great knowledge and with life terms should not be subject to those of a legislative body composed of members with very limited terms and knowledge of the laws. Also, the plan in the Constitution should be commended for it is the same as that of nine of the thirteen states, and it is not true that the British or the several state legislatures can rectify exceptionable decision of their courts. There is nothing in their constitutions that authorizes or forbids a revision of a judicial sentence by a legislative act and the legislatures of their states and the United States cannot without exceeding its province reverse a determination once made in a particular case though it may prescribe a new rule for future cases. The last point is that there is no danger that the courts will encroach upon legislative power because of the restraints contained in the proposed plan.
We know today that the objectors were correct, that the courts would construe the laws according to what they considered the spirit of the Constitution and there would be no remedy for such actions. Roe vs Wade is the prime example where the courts found a privacy provision somewhere in the spirit of the Constitution and now any law passed by any legislature that does not recognize this right to abortion contained somewhere in the Constitution will be ruled unconstitutional by the supreme court thus there is no remedy for this unconstitutional decision.
Having disposed of the objections to an independent supreme court he considers the propriety of constituting inferior courts and their relations between them and the supreme court. This power allows the Federal Government to create district courts for the purpose of reducing the burden on the supreme court. The supreme court has original jurisdiction only in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases where the federal courts have jurisdiction the supreme court will have appellate jurisdiction and the inferior courts original jurisdiction. A long discussion ensues concerning whether this appellate jurisdiction applies to fact as well as to law that is if facts are determined by a jury at a lower level can these facts be re-examined by the supreme court. The discussion concludes that the appellate jurisdiction does include that of fact. Those interested in the detailed legal arguments behind this result are referred to the original paper.
I will repeat one legal discussion concerning sovereignty. He states it is inherent in the nature of a state’s sovereignty not to be subject to the suit of an individual without its consent. Every state has this immunity and there is nothing in the plan if adopted would divest them of paying their own debts in their own way free from every constraint. Here is the interesting statement; “The contracts between a nation and individuals are only binding on the conscience of the sovereign and have no pretensions to a compulsive force”. This interests me because not only is he conceding that the states are sovereign but he gives them the status of a nation. This is further confirmation to me that states were not giving up their sovereignty to adopt the Constitution and that they were considered by themselves and others as free and independent nations as also indicated in the Declaration of Independence.
Federalist Papers Summary 81 Written by Donald Mellon
