Federalist no. 78 and Brutus' neglected thesis on judicial supremacy.

• Author: Slonim, Shlomo

Just three years ago the United States marked the bicentennial of Marbury v. Madison, the celebrated case that established the principle of judicial review in 1803. The novelty of a court asserting authority to declare laws unconstitutional was labelled by the noted historian Charles Beard as "the most unique contribution to the science of government which has been made by American political genius." (1) The occasion of the anniversary prompted a considerable outpouring of scholarly articles on the subject of judicial review, (2) many of them focusing on the question whether the Rehnquist Court had not strayed from the generally accepted parameters of judicial review as recognized by the Court since the late nineteen-thirties. (3)

It is noteworthy that whenever Marbury v. Madison is discussed in works on constitutional law, text books or case books, reference is invariably made to Alexander Hamilton's discussion of judicial review in Federalist No. 78 as an early indication that the principle was regarded as a fundamental part of the system of government set up under the Constitution. (4) Surprisingly, these works, almost without exception, fail to refer to the Antifederalist Letters of Brutus to which this number of the Federalist Papers constitutes a response. (5) This is a regrettable omission since No. 78 cannot be properly understood except in the context of Brutus' charge that the Constitution provided, not only for judicial review, but for judicial supremacy. (6) Federalist No. 78 (and succeeding numbers) represent merely the other half of a dialogue over the claim that judicial supremacy is inherent under the Constitution. Moreover, Brutus' views on judicial supremacy constitute a novel thesis which, to date, have not been sufficiently appreciated in the literature. (7) Hamilton's counterargument (mainly in Federalist Nos. 78 and 81), viewed in the light of Brutus' thesis, is seen to obfuscate the issue of judicial supremacy and, in effect, leaves Brutus' thesis unimpaired.

JUDICIAL REVIEW AND NATIONAL CONSOLIDATION

Perhaps the first thing to note is that Brutus did not question the right of the courts to exercise judicial review.

[I]f the legislature pass laws, which, in the judgment of the court, they are not authorised to do by the constitution, the court will not take notice of them; for it will not be denied, that the constitution is the highest or supreme law. And the courts are vested with the supreme and uncontroulable power, to determine, in all cases that come before them, what the constitution means; they cannot, therefore, execute a law, which, in their judgment, opposes the constitution, unless we can suppose they can make a superior law give way to an inferior. (8) In acknowledging that judicial review was within the province of the court, Brutus went on to outline the corollary: "[T]he judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers [since] the legislature ... will not go over the limits by which the courts may adjudge they are confined." (9)

What concerned Brutus, in the first instance, was the use to which the court would apply judicial review in the service of national consolidation and how this would threaten the independence and survival of the states. The judicial power, Brutus warned, would operate to affirm and legitimate all the invasions of state power committed by the national legislature. "The real effect of this system of government, will ... be brought home to the feelings of the people, through the medium of the judicial power." Therefore, he said, it was

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. They are to be rendered totally independent, both of the people and the legislature. (10) "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." (11) Thus, "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." (12) By legitimating the expansive exercise of federal power, the courts would be contributing to the aggrandizement of the national government at the expense of the states. And the institution of a federal system of government, which presumed a meaningful role for the states in partnership with the national government, would be seen as a mere sham. "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 controul their adjudications. From this court there is no appeal." (13) And presumably, the legislature itself could not set aside a judgment of this court, he said, "because they are authorized by the constitution to decide in the last resort. The legislature must be controuled by the constitution, and not the constitution by them." (14) Given the power of the judiciary, it "will enable them to mould the government, into almost any shape they please." (15)

It was important, in Brutus' view, to appreciate that the court would be free to interpret the constitution, "not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states." (16)

The "spirit" of the constitution, Brutus claimed, can best be deduced from the preamble to the Constitution, which included the comprehensive term "to provide for the general welfare." "[I]f the spirit of this system is to be known from its declared end and design in the preamble, its spirit is to subvert and abolish all the powers of the state government, and to embrace every object to which any government extends." (17) This conclusion is confirmed by the powers enumerated in Article 1, Section 8, which "extend to almost every thing about which any legislative power can be employed." (18) And if so, Brutus contended, "nothing can stand before it" (i.e., the national legislature). (19) This was particularly so in view of the expansive nature of the necessary and proper clause which would "undoubtedly be an excellent auxilliary to assist the courts to discover the spirit and reason of the constitution." (20) As a result, the powers of the government would extend "to every case, and reduce the state legislatures to nothing." (21) This conclusion emerged from the following analysis:

[T]hese courts will have authority to decide upon the validity of the laws of any of the states, in all cases where they come in question before them. Where the constitution gives the general government exclusive jurisdiction, they will adjudge all laws made by the states, in such cases, void ab initio. Where the constitution gives them concurrent jurisdiction, the laws of the United States must prevail, because they are the supreme law. In such cases, therefore, the laws of the state legislatures must be repealed, restricted, or so construed, as to give full effect to the laws of the union on the same subject.... [I]n proportion as the general government acquires power and jurisdiction, by the liberal construction which the judges may give the constitution, will those of the states lose its rights, until they become so trifling and unimportant, as not to be worth having. (22) JUDICIAL SUPREMACY

Beyond assessing the impact of judicial review on the states, Brutus proceeded to analyze its effect on the national sphere as well. Here he enunciated in very trenchant--indeed, prescient (23)--comments the reason why the Supreme Court would come to exercise, not only judicial review, but judicial supremacy.

The fundamental principle of ordered government, according to Brutus, is accountability. While separation of powers was an essential requirement of sound government, accountability, he insisted, was no less essential an ingredient.

To have a government well administered in all its parts, it is requisite the different departments of it should be separated and lodged as much as may be in different hands. The legislative power should be in one body, the executive in another, and the judicial in one different from either--But still each of these bodies should be accountable for their conduct. (24)... When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.... [T]he true policy of a republican government is, to frame it in such manner, that all persons who are concerned in the government, are made accountable to some superior for their conduct in office.--This responsibility should ultimately rest with the People. (25) With regard to the legislature, Brutus explained, the elected representatives are chosen by the people at stated periods, and are therefore amenable to popular control. Inferior courts are subject to the control of superior courts. "But on this plan we at last arrive at some supreme, over whom there is no power to controul but the people themselves." (26) The creation of an institution, which is not accountable at all to any outside body, "is repugnant to the principles of a free government," Brutus warned. (27) "The supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. (28) ... I...