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The Quid Pro Quo in Federalist 78
Andrew Hyman

Legal blogs have been buzzing this week regarding judicial supremacy, and you can consult Mike Ramsey's posts for the very latest links, especially to the Volokh Conspiracy, Bench Memos, and Huffington Post.

All sides apparently consider Federalist 78 by Alexander Hamilton to be among the leading authorities.  I generally agree with what Ed Whelan has said at Bench Memos in opposition to judicial supremacy, but Mike Ramsey and Ilya Somin properly quoted Hamilton’s statement that “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority”.  No one says Hamilton was wrong about that — Hamilton's statement is a far cry from an endorsement of judicial supremacy.  I would like to elaborate briefly on this aspect of Federalist 78.

Hamilton explicitly disavowed judicial supremacy in Federalist 78, denying that judicial review “would imply a superiority of the judiciary to the legislative power”.  He did say that the judiciary  would be able to void unconstitutional statutes, but Hamilton attached five crucial conditions:

1)            “[A]ll judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR….”

2)            “If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred….” [N.B. Irreconcilable variance is
a high bar analogous to undoubted conflict.]

3)            “[T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”  [N.B. The judges themselves are agents, and thus they are bound to obey the intentions of the people embodied in the Constitution.]

4)            “[N]othing would be consulted but the Constitution and the laws….”

5)            “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them….”

If the other branches believe that the judiciary is adhering to these five conditions, or at least believe that the judiciary is in good faith trying to adhere to these conditions, then I agree with Professor Somin that the other branches generally should “obey judicial decisions invalidating their laws or policies, and must follow the rules laid down in those decisions in similar future cases.”  However, if these five conditions are not met, then Federalist 78 makes very clear that the legislative and executive branches are not without recourse, because the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments .… it can never attack with success either of the other two [branches]….”

And , finally, I’ll say a few words about Thomas Jefferson and the Louisiana Purchase, to which Mike Ramsey and Ilya Somin have recently referred.  They take the position, and also attribute to Jefferson the position, that there are “rare cases where violations of the Constitution are justified, if that is the only way to prevent a great evil….”  Actually, Jefferson did not take that position. Jefferson believed that the Treaty Power was limited to accomplishing other powers enumerated in the Constitution, and the latter powers in his view did not include acquiring foreign territory.  So, he went ahead and did it anyway, and urged Congress to ratify and pay for it, and then “throw themselves on their country for doing for them unauthorized what we know they would have done for themselves if they had been in a situation to do it” (Jefferson’s words).  President Jefferson planned on obtaining a retroactive constitutional amendment, but most people in Congress believed that they did have constitutional power to make the Louisiana Purchase, and so Jefferson acquiesced to them.  My main point here is that Jefferson only purported to violate the Constitution in the belief that he could obtain retroactive constitutional authorization. He never would have presumed to violate the Constitution without “know[ing]” that he would receive retroactive authorization, even if he thought he was preventing some great evil.

Likewise, judges have no legitimate power to strike down statutes that are entirely consistent with the Constitution, on the very weak grounds that the judges know more about evil than the stupid populace; in such circumstances, the judge ought to resign rather than subvert the law and dictate his own morality to an entire nation.  That is how to turn a democracy into a judicial dictatorship.  A judge’s honest but mistaken belief that something is evil may very well itself be evil (and, as Jefferson said, "judges are as honest as other men and not more so").  Allowing judges to strike down statutes on such grounds would obviously violate several of the conditions described in Federalist 78, and would justify the legislative and executive branches in defying the judiciary, in the proud tradition of Americans who have condemned royalty for "abolishing our most valuable Laws."