Reading Project

Federalist Paper No.81

The Judiciary Continued, And The Distribution Of The Judicial Authority

Wednesday, May 28, 1788

Alexander Hamilton


The question of the need for one court of supreme and final jurisdiction is, according to Hamilton, not likely to be contested. However, the composition of the court as well as its powers are likely to be the subjects of debate.


Concerning the court’s composition, Hamilton examines the suggestion that the court, instead of a separate body of judges, should be comprised by at least a portion of the legislature. Hamilton imagines an argument made by critics of the Convention’s plan to appoint a separate judicial body. The criticisms arising from this argument include that:

  1. the court would be able to mould laws into whatever shape they thought appropriate according to the Constitution;
  2. the court would effectively be superior to the legislature (Hamilton has already addressed this argument in Federalist No.78);
  3. its decisions would not be subject to revision by the legislative body, therefore:
  4. there would be no remedy for its errors.

Concerning the first point, Hamilton says out that the Constitution is silent on this matter, but gives the Supreme Court no greater powers in this degree than any State court. Other than that, Hamilton agrees that the Constitution should be the basis of all laws.


Hamilton argues that the court must exist independently of the legislature if the principal of the separation of powers is to be upheld. The idea that a court could comprise even just a part of the legislative body is subject to more than one problem. First, such a court would be unlikely to be impartial in judgments concerning laws of the legislature, since its members may have already been active in passing those laws. Second, is the problem of independence, since the court would be comprised of elected officials whose tenure was limited. The importance of life tenure has already been discussed by Hamilton in Federalist No.78. Third is the problem of knowledge, since the advantage of judges with permanent tenure has already been discussed by Hamilton; that knowledge of the law is complex and acquired through long study. Temporary representatives of the people are not necessarily going to have such a deep knowledge. Finally, a court comprised of members of the legislature would be prone to partisan influence, and factional interests may well outweigh the interests of the law and the people. Added to these reasons, Hamilton points out that nine of the thirteen States’ constitutions had judiciaries that were separate from their legislatures.


The claim that the legislature will have no remedy to address errors of judgement in the Supreme Court is shown to be not true. Hamilton points out that a judgment cannot be overturned by the legislature, but the legislative branch can pass legislation that addresses the problems in law that a judgement raises. In fact, the Constitution neither allows or disallows this, so there is nothing stopping legislators except, the impropriety of the thing, on the general principals of law and reason... In fact, while a judicial mistake may be made, it can never be a threat to the legislature, since legislation may more firmly define the intent of a law for future application. Added to this is the various weaknesses of the judiciary outlined in a previous paper, and the ultimate check upon quixotic legal judgements: impeachments, which the judiciary are subject to, are instituted and judged by the legislative branch.


Hamilton next turns to the question of inferior courts, their composition and their role in the system. He argues that existing State courts should not be handed the role of the intended inferior federal courts. One problem is the inconsistency of tenure for State judges. Some have life tenure, others are appointed from year to year, making them too dependant on their political masters. Added to this is the problem of not separating State and Federal powers. Hamilton argues that appeals would be more numerous from judgements made in State courts, especially in cases where a dispute had begun at a State level.


Hamilton suggests, instead, a series of Federal Courts either in each State or in larger defined districts which might incorporate more than one State. Hamilton favours this latter model, with circuit judges acting for the Federal court supported by State judges.


Next, Hamilton considers the role of the Supreme Court and its District courts. The role of the Supreme Court is confined to judging cases arising from concerns of foreign or State interests: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. (Article III, Section 2, Clause 2 of the Constitution) In addition to this, the Supreme Court has appellant jurisdiction, meaning that it has the power to make judgements on appeal concerning judgements from lesser courts. Hamilton defines appellant jurisdiction because its meaning is different in different State constitutions. Its meaning in the Constitution is the power of one tribunal to review the proceedings of another tribunal. This power is divided between two concerns of a case, the first being matters of fact which a jury would have already judged, and those of matters of law, and its application to the case at hand. Hamilton explains two remedies available in the Supreme Court. First, the court may rule on matters of the law’s application. Concerning matters of fact, it may judge that the interpretation of the facts by a jury require that the case be sent back to a lower court to be tried again. In other words, in matters of appellant jurisdiction, the Supreme Court does not rule on matters of fact, but takes into consideration the matters of fact when considering the law’s application to the case. This clarifies the meaning in the Constitution: 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. (Article III, Section 2, Clause 2 of the Constitution). This is because the Supreme Court may be called upon to review cases in Common Law – the law as set by case precedent – as well as Civil Law, the law as understood in the legislation. In the second case the consideration of facts may be required in order to judge the merits of the case, and the Constitution ensures that the Supreme Court is not limited and can provide the efficacy to the community that its role requires.


Finally, Hamilton digresses in the middle of his paper, a matter I have left until last. His digression concerns State sovereignty. Hamilton claims that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. Put basically, States are sovereign bodies which cannot be sued by individuals. Hamilton upholds this principle, suggesting that an individual’s right to sue would be pointless, since a State could not be forced to comply with the terms of a suit. This position was upheld by the introduction of the 11th amendment in 1794, which sought to codify State sovereignty after a civil case, Chisholm vs Georgia 1793, established that States do not enjoy sovereign immunity. The amendment prevented federal courts from hearing suits from citizens of other States or from foreigners, but it is possible for an individual to sue the State (even though the amendment has been interpreted to mean that State courts can choose not to hear a suit).

16 December 2019

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