Bench Memos

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The Perennial Publius, part 33


In Federalist No. 33, Alexander Hamilton takes up “two clauses [that] have been the sources of much virulent invective and petulant declamation against the proposed constitution”: the “necessary and proper” clause of Article I, section 8, and the “supremacy” clause of Article VI. Typical of Hamilton in all arguments, he seeks no redoubt in which to fend off criticism, but instead storms the breastworks of the enemy (as he had literally done at the battle of Yorktown in 1781):

“[I]t may be affirmed with perfect confidence, that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.”

That is to say, when we give serious governing powers to a real government (not some half-baked confederation), real and serious consequences follow, with all the powers to carry out the government’s legitimate purposes following by necessary inference. And if that government is created for the overarching purpose of uniting states into a nation, then it also follows by necessary inference that its laws, treaties, and other constitutional acts will supersede any conflicting actions of the now-subordinate states.

For those who are mindful that Hamilton makes the classic case (45 essays later) for what we now call “judicial review,” the surprise in this essay is the answer he doesn’t give to the question, “who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the union?” He never mentions the judiciary at all—unless one takes the courts to be implicitly included in his remark that “the national government . . . must judge in the first instance.” The real control he emphasizes is “its constituents in the last” instance.

Democratic politics as the final bulwark of constitutional limits on political authority. Not, first and foremost, or last and hindmost, even perhaps not at all, for large and important purposes, the courts of law. Their role, it seems, does not follow by necessary inference in quite the way we have come to think. Now there’s an original understanding worth pondering.

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

Tags: Franck


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