Federalist 81; On an Activist Judiciary. Hamilton continues his discourse on the nature of the Judiciary in Federalist 81. This paper addresses the very current issue of an activist court. The need for a final arbiter on judicial matters is something that he believes to be self-evident. “That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested.”1 Where a dispute exists in law, in the case where the individual states are in conflict, or where the United States is a party to the issue being adjudicated, having thirteen different jurisdictions is a recipe for confusion and conflict. The only question then is whether that jurisdiction should be either a part of the Legislative branch or a separate branch of government.
Here Hamilton summarizes the primary objection to the Judiciary that it would be a body “superior” to the Legislature. In Great Britain the Judicial power rests in the House of Lords, and many of the states copied that structure. That gave the Legislative branch the power to “rectify” the decisions of the Judiciary that it finds objectionable. Hamilton responds that there is nothing in the proposed constitution that “DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution” even as that “ought” to be the standard.
Further, the proposed Judiciary has no more power than the various judiciaries of the states at the time. In addition, making the Judiciary part of the Legislature violates the principle of separation of powers. If it were part of the Legislature, there would be a tendency to bring in an understanding of what the legislation meant versus what it says. This is an absolutely critical point. As Publius has previously said (through the various writers participating) for laws to have any meaning, the words used to write the law must have meaning. The intent of the law may have been something different than what was written, but we have to follow the written law or the law itself is entirely subjective. It is up to the Legislative branch to write laws that follow the intent of legislators. It is not the function of the Judiciary to clean up poorly written laws, or to guess at what the legislators meant when they wrote them, only to clarify what the law says, and whether that language is in contradiction with the supreme law of the land in the Constitution.
Recent Judicial turmoil in the case of abortion is the perfect modern illustration of the Founder’s point. Previous courts have sought to create laws in the “spirit” of the Constitution where the specific language was either insufficient or absent. In so doing they have violated the very reason the Founders insisted that the Legislative and Judicial branches be separate. And remember, the British model, and that nine of the 13 states, did not have this separation. But the Founders felt it was so critically important, given man’s fallen nature, to create a series of checks and balances using that very same nature as a tool of enforcement. And, as usual, we would be wise to listen to them. Hamilton makes this point clearly by pointing out that a Judiciary that is part of the Legislature would likely bring to their interpretations of the written text their knowledge of the intent of the law. And further, should that intent be a violation of the proposed constitution, “still less could it be expected that men who had infringed the Constitution in the character of legislators…be disposed to repair the breach in the character of judges.” Better to keep the functions completely separate.
None of this is to say that the Legislative branch has no remedy when it feels that the Judiciary is wrong in its interpretation of a law. Previously Federalist 80 clearly points out that Congress can always choose to limit the Judiciary’s jurisdiction, and further, “A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases.” To go back to our recent example, should Congress feel that the Dobbs decision regarding Roe v. Wade was incorrect, they have the authority to codify the findings of Roe into law, effectively overruling the Judiciary.
The rest of this paper deals with the jurisdiction of the lower courts, appellate and circuit, and the remanding of cases between courts. He does, however, address the possibility of the Supreme Court overruling properly conducted state jury trials. While the Supreme Court exists to determine jurisdiction and Constitutionality it does “not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.” It is up to the various courts within the states to “ascertain disputed facts by a jury”. There was a concern that the important concept of state trial by jury could be put in jeopardy by a powerful Federal Judiciary. To this Hamilton assures us that only a “small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals”. This is in keeping with the limited scope that the Constitution gives to the Federal government at large.
The jurisdiction of the Federal Judiciary may be absolute when it comes to interpreting the Constitution, and deciding jurisdiction, but neither can it overrule a proper jury decision of a lower court. The decay of the right to a trial by jury is a separate issue, independent of the Constitution and the intent of our Founders.
Next: Federalist 82 and 83 Analysis
To read all of John Parillo’s work on the Federalist Papers, click here.
Footnotes
- Original quotes found here: https://federalist-papers.com/federalist-81/. ↩︎
Citation
This piece was originally published at American Free News Network and re-published with their permission.
