Antifederalist No. 80
THE POWER OF THE JUDICIARY (PART 2)
From the 11th essay of "Brutus" taken from The New-York Journal,
January 31, 1788.
The nature and extent of the judicial power of the United
States, proposed to be granted by the constitution, claims our
particular attention.
Much has been said and written upon the subject of this new
system on both sides, but I have not met with any writer who has
discussed the judicial powers with any degree of accuracy. And
yet it is obvious, that we can gain but very imperfect ideas of
the manner in which this government will work, or the effect it
will have in changing the internal police and mode of
distributing justice at present subsisting in the respective
states, without a thorough investigation of the powers of the
judiciary and of the manner in which they will operate. This
government is a complete system, not only for making, but for
executing laws. And the courts of law, which will be constituted
by it, are not only to decide upon the constitution and the laws
made in pursuance of it, but by officers subordinate to them to
execute all their decisions. The real effect of this system of
government, will therefore be brought home to the feelings of the
people, through the medium of the judicial power. It is,
moreover, of great importance, to examine with care the nature
and extent of the judicial power, because those who are to be
vested with it, are to be placed in a situation altogether
unprecedented in a free country. They are to be rendered totally
independent, both of the people and the legislature, both with
respect to their offices and salaries. No errors they may commit
can be corrected by any power above them, if any such power there
be, nor can they be removed from office for making ever so many
erroneous adjudications.
The only causes for which they can be displaced, is,
conviction of treason, bribery, and high crimes and misdemeanors.
This part of the plan is so modelled, as to authorize the
courts, not only to carry into execution the powers expressly
given, but where these are wanting or ambiguously expressed, to
supply what is wanting by their own decisions.
That we may be enabled to form a just opinion on this
subject, I shall, in considering it, lst. Examine the nature and
extent of the judicial powers, and 2nd. Inquire, whether the
courts who are to exercise them, are so constituted as to afford
reasonable ground of confidence, that they will exercise them for
the general good.
With a regard to the nature and extent of the judicial
powers, I have to regret my want of capacity to give that full
and minute explanation of them that the subject merits. To be
able to do this, a man should be possessed of a degree of law
knowledge far beyond what I pretend to. A number of hard words
and technical phrases are used in this part of the system, about
the meaning of which gentlemen learned in the law differ. Its
advocates know how to avail themselves of these phrases. In a
number of instances, where objections are made to the powers
given to the judicial, they give such an explanation to the
technical terms as to avoid them.
Though I am not competent to give a perfect explanation of
the powers granted to this department of the government, I shall
yet attempt to trace some of the leading features of it, from
which I presume it will appear, that they will operate to a total
subversion of the state judiciaries, if not to the legislative
authority of the states.
In article 3d, sect. 2d, it is said, "The judicial power
shall extend to all cases in law and equity arising under this
constitution, the laws of the United States, and treaties made,
or which shall be made, under their authority, etc." The first
article to which this power extends is, all cases in law and
equity arising under this constitution.
What latitude of construction this clause should receive, it
is not easy to say. At first view, one would suppose, that it
meant no more than this, that the courts under the general
government should exercise, not only the powers of courts of law,
but also that of courts of equity, in the manner in which those
powers are usually exercised in the different states. But this
cannot be the meaning, because the next clause authorises the
courts to take cognizance of all cases in law and equity arising
under the laws of the United States; this last article, I
conceive, conveys as much power to the general judicial as any of
the state courts possess.
The cases arising under the constitution must be different
from those arising under the laws, or else the two clauses mean
exactly the same thing. The cases arising under the constitution
must include such, as bring into question its meaning, and will
require an explanation of the nature and extent of the powers of
the different departments under it. This article, therefore,
vests the judicial with a power to resolve all questions that may
arise on any case on the construction of the constitution, either
in law or in equity.
lst. They are authorised to determine all questions that
may arise upon the meaning of the constitution in law. This
article vests the courts with authority to give the constitution
a legal construction, or to explain it according to the rules
laid down for construing a law. These rules give a certain
degree of latitude of explanation. According to this mode of
construction, the courts are to give such meaning to the
constitution as comports best with the common, and generally
received acceptation of the words in which it is expressed,
regarding their ordinary and popular use, rather than their
grammatical propriety. Where words are dubious, they will be
explained by the context. The end of the clause will be attended
to, and the words will be understood, as having a view to it; and
the words will not be so understood as to bear no meaning or a
very absurd one.
2nd. The judicial are not only to decide questions arising
upon the meaning of the constitution in law, but also in equity.
By this they are empowered, to explain the constitution according
to the reasoning spirit of it, without being confined to the
words or letter. "From this method of interpreting laws (says
Blackstone) by the reason of them, arises what we call equity";
which is thus defined by Grotius, "the correction of that,
wherein the law, by reason of its universality, is deficient; for
since in laws all cases cannot be foreseen, or expressed, it is
necessary, that when the decrees of the law cannot be applied to
particular cases, there should somewhere be a power vested of
defining those circumstances, which had they been foreseen the
legislator would have expressed. . . ." The same learned author
observes, "That equity, thus depending essentially upon each
individual case, there can be no established rules and fixed
principles of equity laid down, without destroying its very
essence, and reducing it to a positive law."
From these remarks, the authority and business of the courts
of law, under this clause, may be understood.
They [the courts] will give the sense of every article of
the constitution, that may from time to time come before them.
And in their decisions they will not confine themselves to any
fixed or established rules, but will determine, according to what
appears to them, the reason and spirit of the constitution. The
opinions of the supreme court, whatever they may be, will have
the force of law; because there is no power provided in the
constitution that can correct their errors, or control their
adjudications. From this court there is no appeal. And I
conceive the legislature themselves, cannot set aside a judgment
of this court, because they are authorised by the constitution to
decide in the last resort. The legislature must be controlled by
the constitution, and not the constitution by them. They have
therefore no more right to set aside any judgment pronounced upon
the construction of the constitution, than they have to take from
the president, the chief command of the army and navy, and commit
it to some other person. The reason is plain; the judicial and
executive derive their authority from the same source, that the
legislature do theirs; and therefore in all cases, where the
constitution does not make the one responsible to, or
controllable by the other, they are altogether independent of
each other.
The judicial power will operate to effect, in the most
certain, but yet silent and imperceptible manner, what is
evidently the tendency of the constitution: I mean, an entire
subversion of the legislative, executive and judicial powers of
the individual states. Every adjudication of the supreme court,
on any question that may arise upon the nature and extent of the
general government, will affect the limits of the state
jurisdiction. In proportion as the former enlarge the exercise
of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean
strongly in favor of the general government, and will give such
an explanation to the constitution, as will favor an extension of
its jurisdiction, is very evident from a variety of
considerations.
lst. The constitution itself strongly countenances such a
mode of construction. Most of the articles in this system, which
convey powers of any considerable importance, are conceived in
general and indefinite terms, which are either equivocal,
ambiguous, or which require long definitions to unfold the extent
of their meaning. The two most important powers committed to any
government, those of raising money, and of raising and keeping up
troops, have already been considered, and shown to be unlimited
by any thing but the discretion of the legislature. The clause
which vests the power to pass all laws which are proper and
necessary, to carry the powers given into execution, it has been
shown, leaves the legislature at liberty, to do everything, which
in their judgment is best. It is said, I know, that this clause
confers no power on the legislature, which they would not have
had without it-though I believe this is not the fact, Yet,
admitting it to be, it implies that the constitution is not to
receive an explanation strictly according to its letter; but more
power is implied than is expressed. And this clause, if it is to
be considered as explanatory of the extent of the powers given,
rather than giving a new power, is to be understood as declaring
that in construing any of the articles conveying power, the
spirit, intent and design of the clause should be attended to, as
welt as the words in their common acceptation.
This constitution gives sufficient color for adopting an
equitable construction, if we consider the great end and design
it professedly has in view. These appear from its preamble to be,
"to form a more perfect union, establish justice, insure domestic
tranquility, provide for the common defense, promote the general
welfare, and secure the blessings of liberty to ourselves and
posterity." The design of this system is here expressed, and it
is proper to give such a meaning to the various parts, as will
best promote the accomplishment of the end; this idea suggests
itself naturally upon reading the preamble, and will countenance
the court in giving the several articles such a sense, as will
the most effectually promote the ends the constitution had in
view. How this manner of explaining the constitution will
operate in practice, shall be the subject of future inquiry.
2nd. Not only will the constitution justify the courts in
inclining to this mode of explaining it, but they will be
interested in using this latitude of interpretation. Every body
of men invested with office are tenacious of power; they feel
interested, and hence it has become a kind of maxim, to hand down
their offices, with all its rights and privileges, unimpaired to
their successors. The same principle will influence them to
extend their power, and increase their rights; this of itself
will operate strongly upon the courts to give such a meaning to
the constitution in all cases where it can possibly be done, as
will enlarge the sphere of their own authority. Every extension
of the power of the general legislature, as well as of the
judicial powers, will increase the powers of the courts; and the
dignity and importance of the judges, will be in proportion to
the extent and magnitude of the powers they exercise. I add, it
is highly probable the emolument of the judges will be increased,
with the increase of the business they will have to transact and
its importance. From these considerations the judges will be
interested to extend the powers of the courts, and to construe
the constitution as much as possible, in such a way as to favor
it; and that they will do it, appears probable.
3rd. Because they [the courts] will have precedent to
plead, to justify them in it [extending their powers]. It is
well known, that the courts in England, have by their authority,
extended their jurisdiction far beyond the limits set them in
their original institution, and by the laws of the land.
The court of exchequer is a remarkable instance of this. It
was originally intended principally to recover the king's debts,
and to order the revenues of the crown. It had a common law
jurisdiction, which was established merely for the benefit of the
king's accountants. We learn from Blackstone, that the
proceedings in this court are grounded on a writ called quo
minus, in which the plaintiff suggests, that he is the king's
farmer or debtor, and that the defendant hath done him the damage
complained of, by which he is less able to pay the king. These
suits, by the statute of Rutland, are expressly directed to be
confined to such matters as specially concern the king, or his
ministers in the exchequer. And by the articuli super cartas, it
is enacted, that no common pleas be thenceforth held in the
exchequer contrary to the form of the great charter. But now any
person may sue in the exchequer. The surmise of being debtor to
the king being matter of form, and mere words of course, the
court is open to all the nation.
When the courts will have a precedent before them of a court
which extended its jurisdiction in opposition to an act of the
legislature, is it not to be expected that they will extend
theirs, especially when there is nothing in the constitution
expressly against it? And they are authorised to construe its
meaning, and are not under any control.
This power in the judicial, will enable them to mould the
government, into any shape they please. The manner in which this
may be effected we will hereafter examine.
BRUTUS