From Issue #99-38
The original Federalist consisted of 85 separate papers, which addressed the inadequacy of the Articles of Confederation, and advocated their replacement by our Constitution. They were penned under the pseudonym Publius, but in actuality were composed by Alexander Hamilton, John Jay and James Madison, the author of our Constitution.
Alexander Hamilton was an aide to General Washington in the Revolutionary War and a member of the Continental Congress. He was the fist Secretary of the Treasury and a member of the 1787 Constitutional Convention. John Jay was a conservative lawyer and the first Chief Justice of the United States Supreme Court. James Madison worked for the revolutionary cause as a member of the Continental Congress and led deliberations at the Constitutional Convention. He fought for the adoption of the Constitution and the Bill of Rights. Though an ally of Hamilton, he sided more with Jefferson's agrarian policies.
What were the Federalist Papers supposed to accomplish? After the preparation of the Constitution in Philadelphia in 1787, there then followed the ratification effort. Four states were critical to that effort -- Pennsylvania, Massachusetts, Virginia and New York. Of these, New York was the most difficult, with the most opposition. Hamilton decided that a rigorous schedule of articles directed at the voters of New York through their newspapers would be necessary, and to that end the Papers appeared four times a week.
If the objective of the Papers was to persuade New York voters, then they failed, because New Yorkers elected a delegation that opposed the Constitution two to one, and because the popular vote had opposed its ratification by 56%. The only reason New York ratified the Constitution was that during the New York debates on the ratification, New Hampshire, the ninth state, ratified the Constitution, and New York was faced with the prospect of lonely nationhood. Practicality held sway.
The real impact of the Federalist Papers has been largely historical, having been written by those who championed the Constitution over the loose Articles of Confederation, and the Papers' logic and expression have provided interpretation and reason for the principles enunciated in the Constitution. They remain, to this day, the most authoritative exposition of our Constitution's original intent.
One might argue, in the "original intent" context provided by the Federalist Papers, that the branch of government that has strayed most perilously from its constitutional limitation is the judiciary. But, what did the Papers have to say about the constitutional intent for the judiciary?
The Federalist Papers were quite clear about the proper role of the judiciary, because the method by which the Constitution of the United States was to be interpreted was one of the most pressing obstacles to its ratification. The concern among constitutional opponents was that the documnet gave the judiciary the power to interpret the laws according to the spirit of the Constitution, which, as they said, would "enable that court to mold the laws into whatever shape it may think proper, especially as its decisions will not be in any manner subject to the revision or correction of the legislature."
"This," said the Federalist authors, "was as unprecedented as it was dangerous." Continuing, "There is not a syllable in the plan...which directly empowers the national courts to construe the laws according to the spirit of the Constitution."
The role of the judiciary in dealing with the Constitution and its impact upon the laws passed by the legislature was certainly not to ascertain the "spirit of the Constitution," but rather it was to examine the words within the Constitution to "be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."
Clearly, our present-day federal courts have far exceeded the authority of their offices, which explains why we see constitutional amendments and other proposals, which would permit the legislative branch to override the decisions of the judicial branch. Conservative members of Congress have even forwarded bills requiring their own legislative branch to identify and attach the "constitutional authority" for every piece of legislation -- but to no avail.
The Federalist Papers argued that a separate judicial branch of government (rather than one incorporated within the legislative branch, as was the case in the English House of Lords) would, by the nature of its functions, be the less dangerous to the political rights of the Constitution, because it would possess less capacity to annoy or injure such rights.
As established, the judicial branch was perceived as the weakest of the three government branches. As the Papers noted, "The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of the citizens are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive for the efficacy of its judgments."
The ultimate will of the people, as recognized by the Federalist Papers, is the Constitution. In discharging its responsibilities, there was no perceived superiority of the judiciary over the legislature. As the Papers said, "It only supposes that the power of the people is superior to both, and that where the will of the legislature declared in its statute, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter and not the former. The ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." If there is a variance between the two laws, fundamental and non-fundamental, "that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
The Federalist exposition notwithstanding, perhaps the clearest words regarding the Constitution's limitation on the branches of government are contained in that document's 10th Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
One-hundred and fifty years after its ratification, our Constitution and the republican form of government it established were severely compromised. In 1936, under the reign of Franklin Roosevelt, in a United States Supreme Court decision, Justice Hugo Black penned the words, "We must attempt to ascertain the spirit of the Constitution to interpret it." Thus began an era of judicial activism, which has grown more radical with each passing year. Black's decision set the stage for the destruction of the delicate system of checks and balances among the three branches of government, and despite some evidence from recent decisions that the high court is striking a better balance in favor of Federalism -- state's rights -- judicial activism, the most arrogant violation of our Constitution, continues virtually unabated.
Go on to The Federialists Revisited - Part 2
TO CONSTITUIONAL ISSUES
25 Sep 1999