FReeper Book Club: The Debate over the Constitution, Federalist #82

Hamilton takes apart the federal courts and examines the relationships between federal and state court system.

² The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety, and these may in a particular manner be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties.

³ [It is] time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole.

⁴ Such questions accordingly have arisen upon the plan proposed by the Convention and particularly concerning the Judiciary department.

⁵ The principal of these respect the situation of the state courts in regard to those causes which are to be submitted to federal jurisdiction.

⁶ Is this to be exclusive, or are those courts to possess a concurrent jurisdiction?

⁸ These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.

⁹ The principles established in a former paper ¹ teach us that the states will retain all pre-existing authorities which may not be exclusively delegated to the federal head, and that this exclusive delegation can only exist in one of three cases:

¹⁰ Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former as well as the latter.

¹¹ And under this impression, I shall lay it down as a rule that the state courts will retain the jurisdiction they now have unless it appears to be taken away in one of the enumerated modes.

¹² The only thing in the proposed Constitution which wears the appearance of confining the causes of federal cognizance to the federal courts is contained in this passage: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.”

¹³ This might either be construed to signify that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend, or simply to denote that the organs of the National Judiciary should be one Supreme Court and as many subordinate courts as Congress should think proper to appoint, or in other words that the United States should exercise the judicial power with which they are to be invested through one supreme tribunal and a certain number of inferior ones to be instituted by them.

¹⁴ The first excludes, the last admits, the concurrent jurisdiction of the state tribunals, and as the first would amount to an alienation of state power by implication, the last appears to me the most natural and the most defensible construction.

¹⁵ But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance.

¹⁶ It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established, for not to allow the state courts a right of jurisdiction in such cases can hardly be considered as the abridgment of a pre-existing authority.

¹⁷ I mean not therefore to contend that the United States in the course of legislation upon the objects entrusted to their direction may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient, but I hold that the state courts will be divested of no part of their primitive jurisdiction further than may relate to an appeal, and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the National Legislature, they will of course take cognizance of the causes to which those acts may give birth.

¹⁸ This I infer from the nature of judiciary power and from the general genius of the system.

¹⁹ The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe.

²⁰ Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts.

²¹ When in addition to this, we consider the state governments and the national governments, as they truly are, in the light of kindred systems and as parts of one whole, the inference seems to be conclusive that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.

²² Here another question occurs: What relation would subsist between the national and state courts in these instances of concurrent jurisdiction?

²³ I answer that an appeal would certainly lie from the latter to the Supreme Court of the United States.

²⁴ The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one without a single expression to confine its operation to the inferior federal courts.

²⁵ The objects of appeal, not the tribunals from which it is to be made, are alone contemplated.

²⁶ From this circumstance and from the reason of the thing, it ought to be construed to extend to the state tribunals.

²⁷ Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor.

²⁸ Neither of these consequences ought without evident necessity to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures.

³⁰ Agreeably to the remark already made, the national and state systems are to be regarded as one whole.

³¹ The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions.

³² The evident aim of the plan of the Convention is that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union.

³³ To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms in subversion of the intent, contrary to every sound rule of interpretation.

³⁴ But could an appeal be made to lie from the state courts to the subordinate federal judicatories?

³⁵ This is another of the questions which have been raised and of greater difficulty than the former.

³⁷ The plan of the Convention in the first place authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.” ²

³⁸ It declares in the next place that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish”, and it then proceeds to enumerate the cases to which this judicial power shall extend.

³⁹ It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts.

⁴⁰ The only outlines described for them are that they shall be “inferior to the Supreme Court,” and that they shall not exceed the specified limits of the Federal Judiciary.

⁴¹ Whether their authority shall be original or appellate, or both, is not declared.

⁴³ And this being the case, I perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals, and many advantages attending the power of doing it may be imagined.

⁴⁴ It would diminish the motives to the multiplication of federal courts and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court.

⁴⁵ The state tribunals may then be left with a more entire charge of federal causes, and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the state courts to district courts of the Union.

Hamilton speculates on the form that future court systems of the United States will take, based on the minimal provisions in the proposed Constitution and his own general knowledge of legal principles. It is speculation only. Here, nearly uniquely within the Federalist Papers, he is not thundering against what he has consistently represented as malicious opposition with ulterior motives, but instead is addressing perfectly natural questions posed, for a change, by what he regards as reasonable men.

⁸ These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.

Recall that the entire subject matter was addressed in the body of the Constitution in fewer sentences than most citizens of the time would have used to give directions to the nearest blacksmith. The entirety of Article III consists of 399 words including the section titles. Those anti-Federalists who practiced law were understandably dismayed by its brevity – the Constitution itself is composed of a mere 4000 words. The European Constitution, more in keeping with modern legal practice, consists of some 156,000. As in so many other topics, the Constitution focuses more on who is to make those decisions than of what those decisions will be. The basic principles of the American Judiciary within the Constitution may be summarized as follows.

To call this spare would be a gross understatement, and if certain anti-Federalists saw dark possibilities for real abuse there was very little that specifically indicated otherwise. It may well be that Hamilton’s uncharacteristically conciliatory tone stemmed from his knowledge that he was only speculating on a form yet shrouded by the future, based on an overly optimistic view of the men who would shortly create the body of the system whose skeleton he was tentatively sketching.

The first principles Hamilton invokes were stated earlier in Federalist #31, and restated at 9 in terms that split the legal hair so finely that the lay eye can see but a single strand. The federal government will be granted exclusive authority either in express terms, or where it is granted to the federal government and prohibited to the states, or where it is granted to the federal government and would be incompatible if granted to the states (9). The reader may be forgiven for considering this a distinction without a significant difference. These conditions, heretofore applying to the Legislative, apply somewhat less stringently to the Judiciary as well (10) with regard to the matter of jurisdiction.

Is there to be concurrent jurisdiction, that is, are there to be cases to be tried in either state or federal courts? The actual text of Article III, Section 1 is quoted, and Hamilton allows that it may be given two interpretations.

It is not, of course, the only possible construction, but it is, says Hamilton, clearly applicable only to cases “of which the state courts have previous cognizance” (15), for to refuse concurrent jurisdiction in matters yet to be established by federal law is not to abridge a pre-existing authority. This reasoning is altogether specious. The issue is not the minimum the federal government may do to avoid the accusation of abridgment, but whether concurrent jurisdiction might be allowed for legislation yet to be written. Hamilton admits this in 17, and in 21 he settles on a default position that still holds considerable ambiguity.

²¹ ...the inference seems to be conclusive that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.

But in all cases of concurrent jurisdiction there must be a clear path of appeal that reflects the eventual subordination of one court system to the other. There is no doubt that the ultimate authority is to be the Supreme Court – Article III says so, as Hamilton affirms at 24 – but where the line of demarcation lies between the state courts and the inferior federal courts yet to be created by Congress is also a matter for reasoned speculation upon broad principle, which Hamilton now expresses.

³⁰ Agreeably to the remark already made, the national and state systems are to be regarded as one whole.

Clearly the Constitution indicates that a line of appeal extends from the inferior federal courts to the Supreme Court, but what of the extension of that to the state courts? Hamilton’s answer is, at least to the lay reader, a masterpiece of opacity.

In plain English, not to extend that line of appeal to the state courts would simply not make sense according to contemporary legal theory. But what then of the possibility that a verdict in a state court might be appealed, not to the Supreme Court, but to one of the inferior federal courts? At 35 Hamilton states frankly it is a difficult question, and at 36 he is inclined to answer in the affirmative, but at 39 he admits that it simply hasn’t been defined yet, at 42 that it will be up to the “discretion of the Legislature”, and at 43 that it would have its advantages, those being, ironically enough, a tendency to avoid untoward expansion of the federal system (44). We have come full circle from the first premise of the paper, and to be fair, Hamilton at no point pretends that any of his speculations are the only possible logical consequences of the spare language of Article III.

This entry would, on the whole, be dismissible as futuristic lawyerly speculation but for one thing, its publication date. It is now 2 July 1788, and as this piece hit the New York newspapers, Hamilton and the others were receiving word in Poughkeepsie that Virginia had ratified the Constitution. One of the two most influential states had thrown its weight toward approval, and the Constitution was now ineluctably confirmed to become the law of the land. New York, North Carolina and Rhode Island were yet to make the approval unanimous, but now the emphasis shifted from the realm of speculation into that of actual execution. Suddenly Hamilton’s discourse on the probable direction of the Judiciary attained an immediacy it would not have possessed one month earlier. Very soon Congress would be building the federal court system about which Hamilton could now only guess.

How far does the federal court system, as Hamilton imagined it, coincide with the system we see today?

To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...

Ping! The thread has been posted.

Earlier threads:

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.