Bench Memos

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The Perennial Publius, part 78


There is probably no single essay in The Federalist that is cited more often in Supreme Court opinions than No. 78.  This is natural enough; it is not only the first essay on the judiciary, but the location of Publius’s fullest statement (almost his only one) on the power we now call “judicial review”–the power of the federal courts to hold acts of Congress invalid as contrary to the Constitution (not to mention actions of the executive).  “Judicial review” is a phrase that was in no one’s vocabulary at the founding, nor for a long time thereafter, and it came into common use to describe the power discussed here only in the early twentieth century.  But since the standardization of this legal terminology–and the standardization of thinking that has accompanied it–Federalist No. 78 has appeared in the Court’s opinions frequently, by way of reminding the reader of the venerable character of the judiciary’s supposedly authoritative position in interpreting the Constitution.

There is a great deal that can be said about this essay.  I will confine myself to just a few observations.

First, the real subject of No. 78 is the virtue of an independent judiciary as an essential component of the separation of powers–something accomplished chiefly by the tenure “during good Behaviour” set by Article III.  It is not until the tenth paragraph (of 23) that Alexander Hamilton mentions this independence as “peculiarly essential” because of the judiciary’s responsibility under a “limited constitution.”  Since Hamilton is concerned to defend the judiciary as “least dangerous to the political rights of the constitution,” and since judicial review (okay, we’ll use the anachronistic phrase) is not explicitly granted in the text but is an inference from it, he might have chosen to deny the existence of the power if it were plausible to do so, and he would have more effectively reassured his readers of the judiciary’s harmlessness.  Instead he affirms the power’s existence.

Second, he affirms its existence without tracing the inference back to specific language in the Constitution, which he might have done (specifically, portions of Articles III and VI).  Instead Hamilton sketches the power’s contours in general terms, as inseparable from the nature of a written constitution, reasoning about what the people do in such a document to govern their governors, and about the role of the courts as “an intermediate body between the people and the legislature.”

Third, however, Hamilton does mention some specific clauses of the Constitution that come to mind as requiring judicial enforcement–”such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like.”  One plausible reading is that it is only “the like” of these clauses–”the reservations of particular rights or privileges”–that call forth an authoritative power of judicial review that the other branches are obliged to respect.  This would mean that much the largest proportion of the Constitution is not a fit subject for judicial “enforcement”; not, for instance, the outer boundaries of political powers that do not in themselves implicate individual rights.  The standard reading of the essay today, though–which is not necessarily the best one–is to rely on the broader statements elsewhere in the essay about unconstitutional acts, and to assimilate those statements into an all-purpose judicial review power.  For better or for worse, Hamilton does not say enough here to adjudicate the issue between these readings decisively.

Fourth, Hamilton does a downright poor job in No. 78 of reassuring any reader who begins to wonder whether there is any available restraint on the judiciary in the event it runs amok with this power to speak in the name of the Constitution.  His response is almost a shrug, remarking that the courts can decide all sorts of cases wrongly–cases involving “two contradictory statutes,” or those involving “any single statute,” as well as those involving an alleged conflict between a statute and the Constitution.  As though there were no differences among these situations, Hamilton says that if the concern “proved any thing, [it] would prove that there ought to be no judges distinct from” the Congress.  Um, no, that’s just not right at all.  Since an erroneous judgment on the meaning of the Constitution is so much more momentous, especially when it invalidates a statute, what it “proves” is that we need some constitutional means of checking the judiciary, just as we need checks on the other branches.

As if he realized how poorly he had handled this aspect of the discussion, Hamilton returns with a much better answer on controlling the courts in No. 81, as we’ll see.  Here, though, he is content to emphasize the judges’ independence and self-restraint, insisting that “they should be bound down by strict rules and precedents.”  And so they should, even if that is not enough for judges who, like all other officeholders, are all too human.

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


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