The Judiciary Continued
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

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. ‘T 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.

Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.

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: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. 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. 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.

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.” 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. 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.

But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. 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. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted 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. This I infer from the nature of judiciary power, and from the general genius of the system. 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. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. 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.

Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. 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. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. 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. 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. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. 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. 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. 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.

But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.” [2] 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. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. 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. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. 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. 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. 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.

PUBLIUS.

1. No. 31.

2. Sec. 8th art. 1st.

“By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.”

Alexander Hamilton Federalist Paper No. 83

Howdy from North Carolina! We just finished filming our We the People 9.17 Contest winner, Katie Strawinski, who won the Best Short Film Category. We filmed her at her school in Georgia and watched her in action as she filmed her football game as the school’s official video photographer. Be sure to check out her short film on our site. She is very talented. Her work was selected by Michael Flaherty, President of Walden Media.

Even though we are officially finished with our “90 in 90,” I realized that I had not written an essay for Federalist Papers No. 82 & 83 because we have been wildly preoccupied on this road trip across America. Thus, I am writing about them today as we journey through North Carolina.

As I read these particular papers, I think about our nation’s youth. Our judicial system is a wonder. It is very easy to take things for granted, such as trial by jury, and forget the many reasons that why this system of government is vitally important – one of the reasons being a fortification against tyranny.

Alexander Hamilton says it best:

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.”

Our Constitution and our legal system are designed to keep those in power in check.

“Willful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, or which the persons who commit them may be indicted and punished according to the circumstances of the case. The strongest argument in its favor is, that it is a security against corruption.”

Alexander Hamilton comments on the necessity of a Constitution, which is a boundary for all potential miscreants of power.

“It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career.”

Another statement of Alexander Hamilton’s from Federalist Paper No. 83 reveals our forefather’s intention to honor each state’s uniqueness and their desire to remain sovereign.

“It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference.”

Only by knowledge of such wisdoms such as these may we have the power to preserve our liberties – awareness, acceptance, action.

God Bless,

Janine Turner

Saturday, August 28, 2010

 

 

Guest Essayist: Robert Lowry Clinton, Professor and Chair of the Department of Political Science at Southern Illinois University Carbondale

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “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. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. 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.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Wednesday, August 18th, 2010

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.

 

“By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.”

Alexander Hamilton Federalist Paper No. 83

Howdy from North Carolina! We just finished filming our We the People 9.17 Contest winner, Katie Strawinski, who won the Best Short Film Category. We filmed her at her school in Georgia and watched her in action as she filmed her football game as the school’s official video photographer. Be sure to check out her short film on our site. She is very talented. Her work was selected by Michael Flaherty, President of Walden Media.

Even though we are officially finished with our “90 in 90,” I realized that I had not written an essay for Federalist Papers No. 82 & 83 because we have been wildly preoccupied on this road trip across America. Thus, I am writing about them today as we journey through North Carolina.

As I read these particular papers, I think about our nation’s youth. Our judicial system is a wonder. It is very easy to take things for granted, such as trial by jury, and forget the many reasons that why this system of government is vitally important – one of the reasons being a fortification against tyranny.

Alexander Hamilton says it best:

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.”

Our Constitution and our legal system are designed to keep those in power in check.

“Willful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, or which the persons who commit them may be indicted and punished according to the circumstances of the case. The strongest argument in its favor is, that it is a security against corruption.”

Alexander Hamilton comments on the necessity of a Constitution, which is a boundary for all potential miscreants of power.

“It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career.”

Another statement of Alexander Hamilton’s from Federalist Paper No. 83 reveals our forefather’s intention to honor each state’s uniqueness and their desire to remain sovereign.

“It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference.”

Only by knowledge of such wisdoms such as these may we have the power to preserve our liberties – awareness, acceptance, action.

God Bless,

Janine Turner

Saturday, August 28, 2010