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Bench Memos

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The Perennial Publius, part 82



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Of all the major institutions of government called into being by the Constitution’s first three Articles, the judiciary may be called the most unfinished.  The houses of Congress had to establish their respective rules and practices, their relation to each other, and certain customary understandings of the uses of their powers.  The executive awaited the creation of the cabinet departments assumed by Article II and the appointment of various officers to carry out a president’s purposes.  But the judicial branch required the most completion before it could do its work.  Consider what was not decided by the Constitution: the number of Supreme Court justices; the composition and powers of inferior federal courts, whose very existence was not guaranteed; the precise relation of these various courts to one another and the terms of their sittings; the exact forms of proceeding that would flesh out Article III’s statements of jurisdiction; and the details of effective judgments and remedies to be handed down by all these courts.  If the Constitution “frames” the judicial house, subsequent legislation beginning with the Judiciary Act of 1789 supplied the lath and plaster, the plumbing, and everything else that makes a house fit to live in.

And what of the neighboring houses?  In Federalist No. 82, with nothing yet but the Constitution to go on, Alexander Hamilton addresses the relation that will subsist between the state courts and the proposed federal judiciary.  To some extent, the federal and state courts will have concurrent jurisdiction–certainly as to “causes of which the state courts have previous cognizance” that are also covered by the language of Article III.  But that is the beginning; what of the end?  Hamilton concludes that “all the causes of the specified classes” in Article III “shall for weighty public reasons receive their original or final determination in the courts of the union.”  Nothing but such a central, hierarchical relation could produce the uniformity in interpretation of federal law that Hamilton discussed in No. 80.

All this will need to be ironed out in legislation after the adoption of the Constitution, which does not itself determine even which federal courts ought to have (which kinds of) appellate jurisdiction over (which kinds of) cases originating in the state courts.  Here is an instance where the reader of The Federalist must tread as cautiously as its authors, recognizing the limits of what can confidently be said of the Constitution before it is a functioning charter of government.  In tones reminiscent of Madison’s No. 37, Hamilton introduces this essay with a reminder of how much actual practice will reveal about meaning:

’Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.

Notice I said that practice will reveal things about meaning.  It will not supply meaning in the sense of making it up, after the fashion of our latter-day “living Constitution” advocates.  To say that using a Constitution will render its meaning more certain and concrete than can be known in the abstract before its use is to say we have reason to take even a great commentary like The Federalist as less than the whole story.  It is not to say that originalism ought to be rejected.  And though I know the argument has actually been made (and I think won someone a Pulitzer once), are we really to believe that the original understanding of the Constitution was that we are not to be guided by the original understanding?

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



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