Antifederalist No. 81
THE POWER OF THE JUDICIARY (PART 3)
Part 1: from the 12th essay by "Brutus" from the February 7th &
14th (1788) issues of The New-York Journal Part 2: Taken from the
first half of the 14th essay February 28, 1788.
In my last, I showed, that the judicial power of the United
States under the first clause of the second section of article
eight, would be authorised to explain the constitution, not only
according to its letter, but according to its spirit and
intention; and having this power, they would strongly incline to
give it such a construction as to extend the powers of the
general government, as much as possible, to the diminution, and
finally to the destruction, of that of the respective states.
I shall now proceed to show how this power will operate in
its exercise to effect these purposes. . . . First, let us
inquire how the judicial power will effect an extension of the
legislative authority.
Perhaps the judicial power will not be able, by direct and
positive decrees, ever to direct the legislature, because it is
not easy to conceive how a question can be brought before them in
a course of legal discussion, in which they can give a decision,
declaring, that the legislature have certain powers which they
have not exercised, and which, in consequence of the
determination of the judges, they will be bound to exercise. But
it is easy to see, that in their adjudication they may establish
certain principles, which being received by the legislature will
enlarge the sphere of their power beyond all bounds.
It is to be observed, that the supreme court has the power,
in the last resort, to determine all questions that may arise in
the course of legal discussion, on the meaning and construction
of the constitution. This power they will hold under the
constitution, and independent of the legislature. The latter can
no more deprive the former of this right, than either of them, or
both of them together, can take from the president, with the
advice of the senate, the power of making treaties, or appointing
ambassadors.
In determining these questions, the court must and will
assume certain principles, from which they will reason, in
forming their decisions. These principles, whatever they may be,
when they become fixed by a course of decisions, will be adopted
by the legislature, and will be the rule by which they will
explain their own powers. This appears evident from this
consideration, that if the legislature pass laws, which, in the
judgment of the court, they are not authorised to do by the
constitution, the court will not take notice of them; for it will
not be denied, that the constitution is the highest or supreme
law. And the courts are vested with the supreme and
uncontrollable power, to determine in all cases that come before
them, what the constitution means. They cannot, therefore,
execute a law, which in their judgment, opposes the constitution,
unless we can suppose they can make a superior law give way to an
inferior. The legislature, therefore, will not go over the
limits by which the courts may adjudge they are confined. And
there is little room to doubt but that they will come up to those
bounds, as often as occasion and opportunity may offer, and they
may judge it proper to do it. For as on the one hand, they will
not readily pass taws which they know the courts will not
execute, so on the other, we may be sure they will not scruple to
pass such as they know they will give effect, as often as they
may judge it proper.
From these observations it appears, that the judgment of the
judicial, on the constitution, will become the rule to guide the
legislature in their construction of their powers.
What the principles are, which the courts will adopt, it is
impossible for us to say. But taking up the powers as I have
explained them in my last number, which they will possess under
this clause, it is not difficult to see, that they may, and
probably will, be very liberal ones.
We have seen, that they will be authorized to give the
constitution a construction according to its spirit and reason,
and not to confine themselves to its letter.
To discover the spirit of the constitution, it is of the
first importance to attend to the principal ends and designs it
has in view. These are expressed in the preamble, in the
following words, viz., "We, the people of the United States, in
order 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 our posterity, do ordain and establish this constitution,"
etc. If the end of the government is to be learned from these
words, which are clearly designed to declare it, it is obvious it
has in view every object which is embraced by any government.
The preservation of internal peace-the due admission of justice-
and to provide for the defense of the community-seems to include
all the objects of government. But if they do not, they are
certainly comprehended in the words, "to provide for the general
welfare." If it be further considered, that this constitution, if
it is ratified, will not be a compact entered into by states, in
their corporate capacities, but an agreement of the people of the
United States as one great body politic, no doubt can remain but
that the great end of the constitution, if it is to be collected
from the preamble, in which its end is declared, is to constitute
a government which is to extend to every case for which any
government is instituted, whether external or internal. The
courts, therefore, will establish this as a principle in
expounding the constitution, and will give every part of it such
an explanation as will give latitude to every department under
it, to take cognizance of every matter, not only that affects the
general and national concerns of the union, but also of such as
relate to the administration of private justice, and to
regulating the internal and local affairs of the different parts.
Such a rule of exposition is not only consistent with the
general spirit of the preamble, but it will stand confirmed by
considering more minutely the different clauses of it.
The first object declared to be in view, is "To form a more
perfect union." It is to be observed, it is not an union of
states or bodies corporate; had this been the case the existence
of the state governments might have been secured. But it is a
union of the people of the United States considered as one body,
who are to ratify this constitution if it is adopted. Now to make
a union of this kind perfect, it is necessary to abolish all
inferior governments, and to give the general one complete
legislative, executive and judicial powers to every purpose. The
courts therefore will establish it as a rule in explaining the
constitution; to give it such a construction as will best tend to
perfect the union or take from the state governments every power
of either making or executing laws. The second object is "to
establish justice." This must include not only the idea of
instituting the rule of justice, or of making laws which shall be
the measure or rule of right, but also of providing for the
application of this rule or of administering justice under it.
And under this the courts will in their decisions extend the
power of the government to all cases they possibly can, or
otherwise they will be restricted in doing what appears to be the
intent of the constitution they should do, to wit, pass laws and
provide for the execution of them, for the general distribution
of justice between man and man. Another end declared is "to
insure domestic tranquility." This comprehends a provision
against all private breaches of the peace, as well as against all
public commotions or general insurrections; and to attain the
object of this clause fully, the government must exercise the
power of passing laws in these subjects, as well as of appointing
magistrates with authority to execute them. And the courts will
adopt these ideas in their expositions. I might proceed to the
other clause, in the preamble, and it would appear by a
consideration of all of them separately, as it does by taking
them together, that if the spirit of this system is to be known
from its declared end and design in the preamble, its spirit is
to subvert and abolish all the powers of the state governments,
and to embrace every object to which any government extends.
As it sets out in the preamble with this declared intention,
so it proceeds in the different parts with the same idea. Any
person, who will peruse the 5th section with attention, in which
most of the powers are enumerated, will perceive that they either
expressly or by implication extend to almost every thing about
which any legislative power can be employed. If this equitable
mode of construction is applied to this part of the constitution,
nothing can stand before it.
This will certainly give the first clause in that article a
construction which I confess I think the most natural and
grammatical one, to authorise the Congress to do any thing which
in their judgment will tend to provide for the general welfare,
and this amounts to the same thing as general and unlimited
powers of legislation in all cases.
This same manner of explaining the constitution, will fix a
meaning, and a very important one too, to the 12th clause of the
same section, which authorises the Congress to make all laws
which shall be proper and necessary for carrying into effect the
foregoing powers, etc. A voluminous writer in favor of this
system, has taken great pains to convince the public, that this
clause means nothing: for that the same powers expressed in this,
are implied in other parts of the constitution. Perhaps it is
so, but still this will undoubtedly be an excellent auxiliary to
assist the courts to discover the spirit and reason of the
constitution, and when applied to any and every of the other
clauses granting power, will operate powerfully in extracting the
spirit from them.
I might instance a number of clauses in the constitution,
which, if explained in an equitable manner, would extend the
powers of the government to every case, and reduce the state
legislatures to nothing. But, I should draw out my remarks to an
undue length, and I presume enough has been said to show, that
the courts have sufficient ground in the exercise of this power,
to determine, that the legislature have no bounds set to them by
this constitution, by any supposed right the legislatures of the
respective states may have to regulate any of their local
concerns.
I proceed, 2nd, to inquire, in what manner this power will
increase the jurisdiction of the courts.
I would here observe, that the judicial power extends,
expressly, to all civil cases that may arise save such as arise
between citizens of the same state, with this exception to those
of that description, that the judicial of the United States have
cognizance of cases between citizens of the same state, claiming
lands -under grants of different states. Nothing more,
therefore, is necessary to give the courts of law, under this
constitution, complete jurisdiction of all civil causes, but to
comprehend cases between citizens of the same state not included
in the foregoing exception.
I presume there will be no difficulty in accomplishing this.
Nothing more is necessary than to set forth in the process, that
the party who brings the suit is a citizen of a different state
from the one against whom the suit is brought and there can be
little doubt but that the court will take cognizance of the
matter. And if they do, who is to restrain them? Indeed, I will
freely confess, that it is my decided opinion, that the courts
ought to take cognizance of such causes under the powers of the
constitution. For one of the great ends of the constitution is,
"to establish justice." This supposes that this cannot be done
under the existing governments of the states; and there is
certainly as good reason why individuals, living in the same
state, should have justice, as those who live in different
states. Moreover, the constitution expressly declares, that "the
citizens of each state shall be entitled to all the privileges
and immunities of citizens in the several states," It will
therefore be no fiction, for a citizen of one state to set forth,
in a suit, that he is a citizen of another; for he that is
entitled to all the privileges and immunities of a country, is a
citizen of that country. And in truth, the citizen of one state
will, under this constitution, be a citizen of every state....
It is obvious that these courts will have authority to
decide upon the validity of the laws of any of the states, in all
cases where they come in question before them. Where the
constitution gives the general government exclusive jurisdiction,
they will adjudge all laws made by the states, in such cases,
void ab inilio. Where the constitution gives them concurrent
jurisdiction, the laws of the United States must prevail, because
they are the supreme law. In such cases, therefore, the laws of
the state legislatures must be repealed, restricted, or so
construed, as to give full effect to the laws of the union on the
same subject. From these remarks it is easy to see, that in
proportion as the general government acquires power and
jurisdiction, by the liberal construction which the judges may
give the constitution, those of the states will lose their
rights, until they become so trifling and unimportant, as not to
be worth having. I am much mistaken, if this system will not
operate to effect this with as much celerity, as those who have
the administration of it will think prudent to suffer it. The
remaining objections of the judicial power shall be considered in
a future paper.
The second paragraph of sect. 2, art. 3, is in these words:
"In all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party, the supreme
court shall have original jurisdiction. In all the other cases
before mentioned, the supreme court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and
under such regulations as the Congress shall make."
Although it is proper that the courts of the general
government should have cognizance of all matters affecting
ambassadors, foreign ministers, and consuls, yet I question much
the propriety of giving the supreme court original jurisdiction
in all cases of this kind.
Ambassadors, and other public ministers, claim, and are
entitled by the law of nations, to certain privileges, and
exemptions, both for their persons and their servants. The
meanest servant of an ambassador is exempted by the law of
nations from being sued for debt. Should a suit be brought
against such an one by a citizen, through inadvertency or want of
information, he will be subject to an action in the supreme
court. All the officers concerned in issuing or executing the
process will be liable to like actions. Thus may a citizen of a
state be compelled, at great expense and inconveniency, to defend
himself against a suit, brought against him in the supreme court,
for inadvertently commencing an action against the most menial
servant of an ambassador for a just debt.
The appellate jurisdiction granted to the supreme court, in
this paragraph, has justly been considered as one of the most
objectionable parts of the constitution. Under this power,
appeals may be had from the inferior courts to the supreme, in
every case to which the judicial power extends, except in the few
instances in which the supreme court will have original
jurisdiction.
By this article, appeals will lie to the supreme court, in
all criminal as well as civil causes. This I know, has been
disputed by some; but I presume the point will appear clear to
any one, who will attend to the connection of this paragraph with
the one that precedes it. In the former, all the cases, to which
the power of the judicial shall extend, whether civil or
criminal, are enumerated. There is no criminal matter, to which
the judicial power of the United States will extend, but such as
are included under some one of the cases specified in this
section. For this section is intended to define all cases, of
every description, to which the power of the judicial shall
reach. But in all these cases it is declared, the supreme court
shall have appellate jurisdiction, except in those which affect
ambassadors, other public ministers and consuls, and those in
which a state shall be a party. If then this section extends the
power of the judicial, to criminal cases, it allows appeals in
such cases. If the power of the judicial is not extended to
criminal matters by this section, I ask, by what part of this
system does it appear, that they have any cognizance of them?
I believe it is a new and unusual thing to allow appeals in
criminal matters. It is contrary to the sense of our laws, and
dangerous to our lives and liberties. . . . As our taw now
stands, a person charged with a crime has a right to a fair and
impartial trial by a jury of his country, and their verdict is
final. If be is acquitted no other court can call upon him to
answer for the same crime. But by this system, a man may have had
ever so fair a trial, have been acquitted by ever so respectable
a jury of his country, and still the officer of the government
who prosecutes may appeal to the supreme court. The whole matter
may have a second hearing. By this means, persons who may have
disobliged those who execute the general government, may be
subjected to intolerable oppression. They may be kept in long
and ruinous confinement, and exposed to heavy and insupportable
charges, to procure the attendance of witnesses, and provide the
means of their defense, at a great distance from their places of
residence.
I can scarcely believe there can be a considerate citizen of
the United States that will approve of this appellate
jurisdiction, as extending to criminal cases, if they will give
themselves time for reflection.
Whether the appellate jurisdiction as it respects civil
matters, will not prove injurious to the rights of the citizens,
and destructive of those privileges which have ever been held
sacred by Americans, and whether it will not render the
administration of justice intolerably burdensome, intricate, and
dilatory, will best appear, when we have considered the nature
and operation of this power.
It has been the fate of this clause, as it has of most of
those against which unanswerable objections have been offered, to
be explained different ways, by the advocates and opponents to
the constitution. I confess I do not know what the advocates of
the system would make it mean, for I have not been fortunate
enough to see in any publication this clause taken up and
considered. It is certain however, they do not admit the
explanation which those who oppose the constitution give it, or
otherwise they would not so frequently charge them with want of
candor, for alleging that it takes away the trial by jury.
Appeals from an inferior to a superior court, as practised in the
civil law courts, are well understood. In these courts, the
judges determine both on the law and the fact; and appeals are
allowed from the inferior to the superior courts, on the whole
merits; the superior tribunal will re-examine all the facts as
well as the law, and frequently new facts will be introduced, so
as many times to render the cause in the court of appeals very
different from what it was in the court below.
If the appellate jurisdiction of the supreme court, be
understood in the above sense, the term is perfectly
intelligible. The meaning then is, that in an the civil case
enumerated, the supreme court shall have authority to reexamine
the whole merits of the case, both with respect to the facts and
the law which may arise under it, without the intervention of a
jury; that this is the sense of this part of the system appears
to me clear, from the express words of it, "in all the other
cases before mentioned, the supreme court shall have appellate
jurisdiction, both as to law and fact, etc." Who are the supreme
court? Does it not consist of the judges? . . . They will
therefore have the same authority to determine the fact as they
will have to determine the law, and no room is left for a jury on
appeals to the supreme court.
If we understand the appellate jurisdiction in any other
way, we shall be left utterly at a loss to give it a meaning.
The common law is a, stranger to any such jurisdiction: no
appeals can lie from any of our common law courts, upon the
merits of the case. The only way in which they can go up from an
inferior to a superior tribunal is by habeas corpus before a
hearing, or by certiorari, or writ of error, after they are
determined in the subordinate courts. But in no case, when they
are carried up, are the facts re-examined, but they are always
taken as established in the inferior court.
BRUTUS