Bench Memos

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The Perennial Publius, part 83


The last of Publius’s essays on the judiciary, Federalist No. 83 is also the longest in all the Federalist.  This might be accounted for by the fact that the last eight essays in the series were not originally published in newspapers, as the first 77 had been, but first appeared in book form, in the second volume of essays published by John and Archibald McLean, on May 28, 1788 (the first volume, reprinting essays 1 through 36, had been published on March 22). 

Hamilton surely has the end of the series in view in writing this essay.  Although the decisive ninth state–New Hampshire–would not ratify the Constitution until June 21, eight states had done so by May 23, and the approval of the Constitution by enough states to bring it into effect for those who had ratified it surely looked like a virtual certainty.  Two states whose disapproval or delay could seriously handicap the reformed Union, or possibly even cause its collapse, had yet to hold their conventions: Hamilton’s New York and Madison’s Virginia.  But by late May the tone of the debate was turning from “shall this constitution be ratified?” to “what are its imperfections and can they be corrected?”

These matters of timing and context explain much of the character of No. 83, in which Hamilton deals with a characteristic Anti-Federalist complaint, focused on what the Constitution does and does not say on the right of trial by jury.  We tend to forget, thanks to the Sixth Amendment’s mention of it, that provision had already been made for jury trials in criminal cases by Article III of the original Constitution.  But Anti-Federalists complained that no similar provision was made for jury trials in civil cases.  In its most extreme form, their argument was that the inclusion of a right to jury trial in criminal cases logically dictated its exclusion in civil cases–using a version of the legal principle expressio unius est exclusio alterius, that the statement of one thing precludes its alternative.  But Hamilton handily shows that maxim to be inapplicable here–that in this instance there is a “wide difference between silence and abolition.”  In truth, juries may be used or not used in civil cases as Congress chooses, so far as the unamended Constitution is concerned.

And this is where Hamilton comes across as virtually assuming the coming ratification of the Constitution.  This lengthy essay takes up the complex business of whether, when, and how juries should be used in non-criminal cases, and whether the Constitution should be tinkered with to guarantee their use in some cases, or whether we would be better off “omitting a [constitutional] provision altogether, and leaving the matter as it has been left, to legislative regulation.”  Hamilton’s chooses the latter; the first Congress would choose the former, and give us the Seventh Amendment.  But none of the alternatives under discussion amounts to saying “reject the Constitution altogether on this account.”

Hamilton’s confidence that he has now reached a point where only minutiae remain to be discussed can be seen at the close of No. 83, where he points out the difference between great institutional structures and minor grace notes in the constitutional symphony:

The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects.  Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be with men of sound discernment a decisive objection to any plan which exhibits the leading characters of a good government.

(For explanation of this recurring feature, see here.)


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