The Federalist. Hamilton Alexander

that an independent judiciary is “essential in a limited constitution”—a constitution which, as he puts it, “contains . . . specified exceptions to legislative authority.” At this juncture, he sets forth his famous argument for judicial review. The Constitution, he insists, must be viewed as fundamental law, the embodiment of the constituent will of the people. Any legislative act contrary to a provision of this fundamental law, in his view, must be regarded as “void.” “To deny” this conclusion, he contends, “would be to affirm, that the deputy is greater than his principal: that the servant is above his master; that the representatives of the people are superior to the people themselves.” Because “The interpretation of the laws is the proper and peculiar province of the courts,” Publius holds that it falls to them to determine when there exists an “irreconcilable difference” between the Constitution and a law passed by Congress. It is “the duty of the judicial tribunals,” he writes, to void statutes that contravene the “manifest tenor” of the Constitution. This does not mean, he adds, that the judiciary is superior to the legislature, but only that the will of the people expressed in the Constitution is superior to both.

      In this essay Publius canvasses other reasons to justify life tenure. The independence of the courts is essential if they are to uphold the Constitution against any “momentary inclination” that may lead majorities to back proposals “incompatible with the provisions in the existing Constitution.” Changes or alterations in the Constitution, he insists, must be made through “some solemn and authoritative act”—i.e., through the amendment process outlined in Article V. Still another reason for the independence of the judiciary relates to the “qualifications” for fit judges. Not only must they be steeped in the law with a knowledge of precedents, they must also be individuals of high moral character. Such “fit characters,” he remarks, are not to be found in abundance. Life tenure, he reasons, might serve as an inducement for such characters to leave “a lucrative line of practice” in the private sector and to “accept a seat on the bench.”

      Publius defends (No. 79) other constitutional provisions that provide for judicial independence. The constitutional provision that the compensation of judges “‘shall not be diminished during the continuance in office’” he regards as “the most eligible provision that could have been devised.” More importantly, he finds that the removal of judges through the impeachment process is the only method “consistent with the independence of the judicial character.”

      In Federalist No. 80, Publius inquires into the “proper objects” of the “federal judicature” and whether Article III of the proposed Constitution conforms to them. In this connection he comments on the role of the federal courts in “giving efficacy to constitutional provisions” by overturning State laws in “manifest contravention” of the Constitution. Moreover, he also sees the need for a judicial power “coextensive” with the legislative to provide for “uniformity in the interpretation of the national laws.” He points as well to the need of the federal judiciary to act as an impartial arbiter in “determining causes between two states, between one state and the citizens of another, and between the citizens of different states.”

      Having defended an independent federal judiciary with the power of judicial review over both State and national laws, in Federalist No. 81 Publius proceeds to answer those Anti-Federalists who argue that the federal courts—and the Supreme Court in particular—will become the dominant branch of government, because they will be free to go beyond the letter of the Constitution to interpret its “spirit.” Publius responds by noting that the Constitution does not “directly” authorize the “national courts to construe the laws according to the spirit of the Constitution” and that, moreover, the latitude given to the national courts by the Constitution is no greater than that enjoyed by the State courts. Publius holds that the “danger of judiciary encroachments” on the legislature is a “phantom,” and that the legislative power to remove judges through the impeachment process is a sufficient deterrent against judicial usurpation.

      After stressing the need for “inferior” federal courts—that is, courts below the Supreme Court—by pointing out that the existing State courts could not very well provide for uniform and impartial interpretations of the national laws (No. 81), Publius takes up the matter of the relationship between the federal and State courts in No. 82. He assures his readers that the adoption of the Constitution will not diminish the jurisdiction of the State courts, save where there is express provision for exclusive federal jurisdiction. He maintains that the degree to which the State courts will share jurisdiction with the federal courts over those matters that are “peculiar to” or “grow out of” the Constitution is a matter for Congress to determine. He again notes that the need for uniformity requires that in cases of concurrent jurisdiction there must be appeal to the national courts.

      In the longest of all the essays, No. 83, Publius engages in a detailed response to Anti-Federalists who argue that the proposed Constitution abolishes trial by jury in civil cases. Publius makes a number of points, three of which are central. First, he rejects the notion that the silence of the proposed Constitution on this score can be interpreted as abolishing trial by jury in such cases. Second, he does not personally believe that trial by jury in all civil cases, unlike trial by jury in criminal cases, is an indispensable “safeguard to liberty.” And, finally, because the practices of the States with regard to civil cases varied, the members of the Convention wisely left this matter to the discretion of Congress.

      H. Concluding Observations

      By way of picking up loose ends, Publius takes up (No. 84) certain “miscellaneous” matters which, he contends, “did not fall naturally under any particular head, or were forgotten in their proper places.” The most important of these he deems to be the objection that the proposed Constitution “contains no bill of rights.”

      Publius approaches this objection from several perspectives. He begins by noting that the proposed Constitution already protects a number of important rights, including the guarantee of the writ of habeas corpus and the prohibition against ex post facto laws; and that, unlike the rights proclaimed in the New York Constitution, the rights in the proposed federal Constitution are not alterable by simple legislation. He then observes that bills of rights, “according to their primitive signification,” are grants of privilege from the sovereign to the people and, as such, have no place in republican governments founded on the consent of the people. “WE, THE PEOPLE” of the Preamble, he declares, “is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our state bills of rights.” He goes on to maintain “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary . . . but would even be dangerous. . . . They would,” he argues, “contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He remarks as well that the security for liberties rests ultimately “on public opinion, and on the general spirit of the people and of the government.”

      The last essay, Federalist No. 85, contains Publius’s final plea for ratification of the Constitution. Holding that “I never expect to see a perfect work from imperfect man,” he maintains that the proposed Constitution is “the best which our political situation, habits, and opinions will admit.” To counter Anti-Federalists urging the addition of amendments as a precondition for ratification, Publius stresses the dangers of seeking to perfect the Constitution through amendments “prior to” its operation. He also observes that such a precondition would require starting the ratification process all over again, producing a delay that might well result in “anarchy, civil war, a perpetual alienation of the states from one another, and perhaps the military despotism of a victorious demagogue.” He notes, by way of answering those concerned about the national government resisting changes that would diminish its powers, that the States can initiate amendments once the system is set in motion; that they will not have to rely upon Congress, an arm of the national government, for this purpose. Recurring to a theme of Federalist No. 1, he strongly suggests that the nation is at the crossroads, and that the opportunity for a republican union might never again present itself.

Preface to