FReeper Book Club: The Debate over the Constitution, Brutus #11

Brutus, most likely Judge Robert Yates of New York, takes on the persona of a legal neophyte in his dissection of the Judiciary Branch under the Constitution.

¹ The nature and extent of the judicial power of the United States proposed to be granted by this Constitution claims our particular attention.

² 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.

³ And yet it is obvious that we can form 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.

⁴ This government is a complete system not only for making but for executing laws.

⁵ 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.

⁶ 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.

⁷ 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.

⁸ They are to be rendered totally independent, both of the people and the Legislature, both with respect to their offices and salaries.

⁹ 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.

¹⁰ The only causes for which they can be displaced is conviction of treason, bribery, and high crimes and misdemeanors.

¹¹ This part of the plan is so modeled 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.

¹² That we may be enabled to form a just opinion on this subject, I shall in considering it:

¹³ 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.

¹⁴ To be able to do this, a man should be possessed of a degree of law knowledge far beyond what I pretend to.

¹⁵ 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.

¹⁶ 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.

¹⁷ 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.

¹⁸ In Article 3, Section 2, 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.”

¹⁹ The first article to which this power extends is all cases in law and equity arising under this Constitution.

²⁰ What latitude of construction this clause should receive, it is not easy to say.

²¹ 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.

²² But this cannot be the meaning because the next clause authorizes 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.

²³ 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.

²⁴ 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.

²⁵ 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.

²⁶ First: They are authorized to determine all questions that may arise upon the meaning of the Constitution in law.

²⁷ 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.

²⁹ 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.

³¹ 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.

³² Second: The Judicial are not only to decide questions arising upon the meaning of the Constitution in law, but also in equity.

³³ By this they are empowered to explain the Constitution according to the reasoning spirit of it without being confined to the words or letter.

³⁴ “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 some where be a power vested of defining those circumstances, which had they been foreseen, the legislator would have expressed, and these are the cases which according to Grotius, "lex non exacte definit, sed arbitrio boni viri permittet.”

³⁵ 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.”

³⁶ From these remarks, the authority and business of the courts of law under this clause may be understood.

³⁷ They will give the sense of every article of the Constitution that may from time to time come before them.

³⁸ 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.

³⁹ 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.

⁴¹ And I conceive the Legislature themselves cannot set aside a judgment of this Court because they are authorized by the Constitution to decide in the last resort.

⁴² The Legislature must be controlled by the Constitution and not the Constitution by them.

⁴³ 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.

⁴⁴ 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.

⁴⁵ 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.

⁴⁶ 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.

⁴⁷ In proportion as the former enlarge the exercise of their powers will that of the latter be restricted.

⁴⁸ 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.

⁴⁹ First: The Constitution itself strongly countenances such a mode of construction.

⁵⁰ 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.

⁵¹ 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 anything but the discretion of the Legislature.

⁵² 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.

⁵³ 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.

⁵⁴ 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 well as the words in their common acceptation.

⁵⁵ 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.”

⁵⁶ 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 enquiry.

⁵⁷ Second: 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.

⁵⁸ 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.

⁵⁹ 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.

⁶⁰ 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.

⁶¹ 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.

⁶³ It is well known that the courts in England have by their own authority extended their jurisdiction far beyond the limits set them in their original institution and by the laws of the land.

⁶⁵ It was originally intended principally to recover the King’s debts and to order the revenues of the Crown.

⁶⁶ It had a common law jurisdiction which was established merely for the benefit of the King's [accountants].

⁶⁷ 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 [has] done him the damage complained of by which he is less able to pay the king.

⁶⁸ 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.

⁶⁹ 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.

⁷⁰ The surmise of being debtor to the King being matter of form, and mere words of course, and the court is open to all the nation.

⁷¹ 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 authorized to construe its meaning and are not under any control?

⁷² This power in the Judicial will enable them to mold the government into almost any shape they please.

One is tempted to impatience with Brutus’ insistence that he is less than a legal expert (14), and his somewhat disingenuous invocation of “hard words and technical phrases” (15). He is demonstrably conversant in both the history and structure of jurisprudence, so much so that is difficult to credit anyone, then or now, reading this essay without so concluding, and enough so as to constitute a firm hint as to Brutus’ actual identity.

Part of this is a literary convention of the day, one of the relatively rare instances of that which serve as a reminder that these men were, in fact, writing in and for a society that is far from contemporaneous. We have already seen Madison repeatedly referring to the actions of the Constitutional Convention as if he were attempting to comprehend them through publication rather than being a central participant. These may be attempts to construct a veneer of objectivity or simply of modesty; nevertheless, the modern reader finds them somewhat distracting.

For Brutus clearly is quite comfortable with the legal milieu. Blackstone (34) is scarcely light reading, and the reference to Grotius – 17th Century Dutch jurist Hugo de Groot, who is credited with the codification of modern international law – indicates a range of erudition more typical of a specialist in the field of legal theory than the casual scholar that Brutus professes to be. Nevertheless, one must grant Brutus some room for genuine modesty, for the waters into which he is about to plunge are very deep indeed.

His topic is to be found in Article III of the proposed Constitution, which deals with the Judiciary branch of the federal government. Typical to that document, it is terse, skeletal, and allows a great deal of room for growth and interpretation. Brutus’ point is that it is so skeletal that it might also allow for a great deal of usurpation of state power on the part of those entrusted with that branch of government.

²⁶ First: They are authorized to determine all questions that may arise upon the meaning of the Constitution in law.

This meaning is to be decided within the words of the Constitution and those of the laws under question. It is actually extremely straightforward, and Brutus offers no particular objection, restricting himself to pointing out that “Where words are dubious, they will be explained by the context.” (30)

³² Second: The Judicial are not only to decide questions arising upon the meaning of the Constitution in law, but also in equity.

³³ By this they are empowered to explain the Constitution according to the reasoning spirit of it without being confined to the words or letter.

There are ambiguities as well, because taken together, the first two clauses appear redundant (23), leaving Brutus to conclude that the Constitution allows the Judiciary the “power to resolve all questions that may arise on any case on the construction of the Constitution, either in law or in equity.” (32) It is a distinction whose import is opaque to the layman. To non-lawyers this is a differentiation based on the English court system wherein matters of law were referred to different courts than matters of equity.^* Equity, in its original meaning, served as the King’s corrective against the over-interpretation of statute law, the Courts of Chancery charged with its resolution being palliatives against judicial tyranny. What Brutus is actually talking about here is the latitude with which the Supreme Court may interpret law.

³⁴ “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 some where be a power vested of defining those circumstances, which had they been foreseen, the legislator would have expressed, and these are the cases which according to Grotius, "lex non exacte definit, sed arbitrio boni viri permittet.”

The Latin translates to “not precisely defined under law, which in the opinion of a good man are to be permitted,” that “good man” being the judge. The guidance for this falls under the doctrine espoused by Grotius and other seminal jurists: Natural Law, that is, the doctrine that the justification for certain laws is to be found in sources other than the statute books themselves. That doctrine informed the Declaration of Independence – it is under Natural Law that such things as “self-evident truths” are possible, and rights may be “endowed by their Creator” instead of the State. It is a doctrine brought over directly from British Common Law. It is what Brutus is referring to when, in 35, he quotes Grotius to the effect that when equity is bound by “established rules and fixed principles”, it reduces law to “positive law.” Legal positivism is the doctrine opposite to that of Natural Law, wherein the authority for the interpretation of law is found strictly within the lines of the statutes.

Definitional convolutions aside, Brutus is concerned that a strict reading of the Constitution confers power to the Judiciary of essentially unlimited interpretation, not only of federal law, but of state laws as well (17, 45). It is raw and unrestricted power.

³⁹ 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.

That is not, strictly speaking, quite the case. Under Article III, the Supreme Court has original jurisdiction over “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” In all other matters its jurisdiction is that of an appellate court, which jurisdiction is determinable by Congress under Article I.

It is, nevertheless, something approaching a blank check in Brutus’ view, and it threatens, as does the rest of the Constitution, to enlarge the power of the general government at the expense of the states (48), both within its own interpretation of judicial powers, and through its ability to intervene in those contests between state and federal governments brought about by legislation from Congress. That is a power that is itself, in Brutus’ opinion, essentially unrestricted through the Necessary and Proper Clause (51, 52).

Power tends to corrupt, according to Lord Acton’s famous dictum, and absolute power corrupts absolutely. It is, to anyone even slightly cynical about human nature, imprudent that the limitations of power should be placed in the keeping of those exercising it. Brutus thinks so for three reasons: that the objectives of the Constitution as expressed in the Preamble lead toward it (55), that its own tendencies run along the lines of Acton’s formulation (58), and because the history of Britain’s Court of Exchequer provides a precedent (62).

Yet to a degree that may have gratified Brutus, the early history of the Supreme Court does include a deliberate limitation of its own power. Yates – assuming he truly was Brutus – would have lived to see the 1798 Supreme Court case of Calder v Bull, wherein the finding of the Court was, in fact, in limitation of its own powers to intervene in matters already decided by the state legislatures. It is interesting to note how similar the considerations before the Court, even the terminology, echoed those of Brutus in this paper. In the opinion of Justice James Iredell, courts cannot strike down statutes based only upon principles of natural justice.

“[t]he ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice…

“If, then, a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so.”

If Brutus was an alarmist in the matter, then so was the Supreme Court. How far this paper served to influence that consideration is impossible to determine, but that it brought it before the public is impossible to deny.

* More technically, the difference between law and equity is that in the former, monetary or other damages may be exacted, whereas in the latter, persons are directed to take action or refrain from taking action. Since 1938 those functions have been largely merged within the court system in the United States, four states only retaining different courts for the two functions.

42 The Legislature must be controlled by the Constitution and not the Constitution by them

Bingo! That is the problem! No matter what system one uses, things will work out for the better if the correct minds take the seats. The debate on this matter is if one system of selection is better than another, or if one system has fatal flaws and another living grace. It is unending.

Reading the posts on this thread takes me back to the first Federalist.

The power to judge has to be given to one area of government. Some faction is going to get/take that power......as power abhors a vacuum.

I think if the critics were to be appointed as the judges, they would have no argument with the system that delivered their seats of power, even if they paid cash money for them.

"The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent? To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason. If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also. This is an absurdity as pernicious as it is gross and palpable. If the judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are. "

Abel Upshur Secretary of the Navy 1841-43

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