To assist comprehension, I have added numbered and lettered headings, in the form I might employ in a court of law or equity.
I. A National Supreme Court Is Required
I now turn to the partition of the judicial authority between different courts, and their relations to each other.
Article I, section 3, of the Constitution provides: “The judicial power of the United States is to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”
The word jurisdiction is composed of jus – the law – and dictio – to speak.
Jurisdiction simply means speaking or pronouncing the law.
No one contests the need for one court of supreme and final jurisdiction.
The reasons for it were discussed in Federalist 80, and are too obvious to need repetition.
The word jurisdiction is composed of jus – the law – and diction – to speak. Jurisdiction simply means speaking or pronouncing the law.
A. The Supreme Court Must Be Independent of Congress
1. Fears of an Uncontrollable Supreme Court Are Unfounded
The only question raised is whether the Supreme Court ought to be a distinct body or merely a part of the legislature, from which individuals would be drawn to serve as members of the court.
Those who desire to vest judicial powers in a part of the legislature assert the authority of a separate and independent Supreme Court would be superior to that of the legislature.
They fear the Supreme Court would have the power to construe laws according to the spirit of the Constitution, enabling it to mold them into whatever shape it thinks proper, especially since its decisions will not be in any manner subject to revision or correction by Congress.
This is asserted to be unprecedented and dangerous because the errors and usurpations of the Supreme Court would be uncontrollable and remediless.
The votaries of this objection prefer the systems of Britain and several of the States, where the judicial power of last resort resides in their legislatures, which are assumed to have the power to rectify by law the unacceptable decisions of their respective high courts.
These objections to the Supreme Court of the United States are made up altogether of false reasonings upon misconceived facts.
a. The Constitution Is Silent on Constitutional Interpretation
The Constitution utters not a single syllable directly empowering the national courts to construe the laws according to the spirit of the Constitution, or of giving them any greater latitude in this respect than may be claimed by the courts of every State.
b. Congressional Acts Must Give Way When Evidently Opposed to the Constitution, and the Supreme Court Is the Final Arbiter as to the Act Before It
The Constitution must be the standard against which the laws of Congress are tested, and those laws must give way to the Constitution wherever there is an evident opposition.
Although this doctrine is not set forth in Constitution itself, it is central to the theory and nature of a limited constitution.
As far as it is true, it applies equally to most if not all State governments.
On this account, any objection that would lie against an independent Federal judicial branch would lie against State and local judicial branches as well, and would serve to condemn every constitution that has or ever will attempt to set bounds to legislative discretion.
2. The Separation of Powers Doctrine Requires the Supreme Court Be a Separate and Distinct Branch of Government, Not an Outgrowth of the Legislative Branch
The force of the objection to the existence of a separate Supreme Court is directed to its composition as a distinct body of magistrates – one of three separate branches of government.
The opponents of a separate and distinct high court would have the Supreme Court be an outgrowth of the legislative branch, instead of being its own branch connected to the tree comprising the activity of the People, who are the root of all power, as explained with more detail in Federalist 84.
These opponents prefer the system prevailing in the governments of Great Britain and New York.
a. Making the Supreme Court a Department of the Congress Would Improperly Intermix the Powers Delegated to Both
To argue the Supreme Court should be a department of the Congress is to renounce allegiance to the doctrine that the departments of power should be separate.
Yet the principal advocates of a scheme that would vest the ultimate decision of all judicial causes in a part of the legislative body object to having the Senate sit as a court of impeachments on the ground it would be an improper intermixture of separate powers.
They are mistaken as to both.
b. While the Scheme Would Not Necessarily Directly Violate the Separation of Powers Doctrine, It Would Result in Indirect Violations
I will concede the doctrine of separation of powers – as explained in Federalist 47 and Federalist 48 – would not be violated by vesting the ultimate power of judging in a part of the legislative body.
But though this be not an absolute violation of that excellent rule, it verges so nearly upon it to be on this account alone to be less eligible than the mode set forth in the Constitution.
(1) Constitutional Violations Would Be Unremedied
Rarely could we expect a body that had even a partial agency in passing bad laws to sit in temper or moderation in deciding whether they were authorized by powers granted to the national government through the Constitution.
The same spirit which had operated in making the laws would pervade their interpretation.
Still less should we expect individuals who had infringed the Constitution in the character of legislators to be disposed to repair the breach while sitting as judges.
Nor is this all.
(2) Individuals Elected to Limited Terms Should Not Review Decisions by Lower Court Judges Who Are Appointed for Life
Every reason in favor of a lifetime tenure for judges during good behavior opposes placing the judicial power of last resort in a body composed of individuals chosen for a limited period.
It would be absurd to refer the determination of causes in the first instance to judges of permanent standing, and in the last to those of a temporary and mutable duration.
(3) Judges Are Selected for Legal Acumen and Training, while Legislators Are Not
A still greater absurdity is subjecting the decisions of individuals selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of individuals who lack that knowledge for want of the same experience.
Rarely are members of the legislature chosen with a view to those qualifications which fit individuals for the station of judge.
(4) Party Factions Inevitably Would Diminish Impartiality
The natural propensity of legislative bodies is to party divisions, and when afflicted with the consequences of ill information, we may fear the pestilential breath of faction will poison the fountains of justice.
The legislative habit of continually marshaling forces on opposite sides will be too apt to stifle the voices of both law and of equity.
c. Over Two Thirds of State Supreme Courts Are Separate from Their Legislatures
All of these considerations lead us to applaud the wisdom of those States which have committed the judicial power of last resort to bodies of individuals distinct and independent from the legislature.
In this respect the Constitution is neither novel nor unprecedented, as it simply a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, all of which are the preferred exemplars for an independent judiciary.
d. Even in Governments Where the Judicial Power of Last Resort Is Vested in a Part of the Legislature, the Rest of the Legislature Is Without Power to Correct Erroneous Judicial Decisions in Particular Cases
Neither the Parliament of Great Britain nor the similarly composed State legislatures can rectify objectionable decisions of their respective courts in any sense other than might be done by a future legislature of the United States. Nothing in the British or State constitutions authorizes revision of a judicial sentence by a legislative act.
The Constitution is to the same effect. Under all of these systems, a legislature cannot reverse a determination once made in a particular case without exceeding its province, although it may prescribe a new rule for future cases.
No express provision commands this: the sole obstacle is its impropriety under general principles of law and reason, and it applies to State governments in exactly the same manner and extent as it would to the national government.
There is not the least difference in any view of the subject.
e. The Threat of Judicial Usurpation of Legislative Power Is Minimal
In the last place, the supposed danger of the judiciary encroaching on legislative authority is in reality a phantom.
While judicial officers may now and then misconstrue or contravene the will of the legislature, their errors can never be so extensive or frequent as to affect the order of the political system to any noticeable degree.
This follows from the general nature of the judicial power, the objects to which it relates, the manner in which it is exercised, its comparative weakness, and its total incapacity to support its usurpations by force.
In addition, the power to institute impeachments in the House of Representatives and to determine them in the Senate is a complete security against judicial usurpations.
A series of deliberate judicial usurpations of legislative authority would hazard the united resentment of the legislative branch, which possesses the means of punishing their presumption by degrading them from their stations.
This not only removes all apprehensions on the subject, it affords a cogent argument for constituting the Senate a court for the trial of impeachments.
In the last place, the supposed danger of the judiciary encroaching on legislative authority is in reality a phantom. While judicial officers may now and then misconstrue or contravene the will of the legislature, their errors can never be so extensive or frequent as to affect the order of the political system to any noticeable degree.
B. The Original Jurisdiction of the Supreme Court Is Limited
The Supreme Court’s original jurisdiction is confined to two classes of causes of a nature rarely to occur: “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Art. III, § 2, cl. 2 (emphasis added).
Public ministers of every class are the immediate representatives of their sovereigns.
All questions in which they are concerned are so directly connected with preserving the public peace and maintaining respect for the sovereignties they represent that expediency and propriety dictate such questions be submitted in the first instance to the highest court of the nation.
Although consuls are not strictly diplomats, they are the public agents of the nations to which they belong, so the same observations are applicable to them.
C. The Supreme Court’s Appellate Jurisdiction Must Extend to Factual as Well As Legal Issues, Since Appellate Jurisdiction of Facts Will Not Interfere with the Right to Trial by Jury
Aside from those cases of original jurisdiction, “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.” Art. III, § 2, cl. 3, emphasis added.
This would include all the classes of cases subject to Federal jurisdiction discussed in Federalist 80.
The propriety of appellate jurisdiction in regard to matters of law is unquestioned, but loud clamors of opposition are heard as to review of matters of fact.
The objection depends in part on a mistaken notion that derives from the language and forms which obtain in New York courts, but not all others.
In New York courts, the term “appellate” is commonly used in reference to appeals in the course of the civil law.
From this technical meaning, some have deduced that the grant of “appellate Jurisdiction, both as to Law and Fact,” supersedes the right to trial by jury, leaving only trials without a jury, as in cases of admiralty, probate, and chancery in this State.
As for cases in which a State happens to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.
But the same meaning would not be given to “appellate” in any part of New England.
There an appeal from one jury to another is familiar both in language and practice. Such “appeals” even occur as a matter of course until there have been two verdicts on one side.
Thus the word “appellate” cannot be understood in the same sense in New England as in New York.
This observation also demonstrates the impropriety of deriving a technical interpretation of a term in the Constitution from the jurisprudence of any particular State.
Viewed in the abstract, the expression of “appellate Jurisdiction, both as to Law and Fact,” denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both.
The mode of doing it may depend on ancient custom. In a new government like ours, it must depend on legislative provision.
In either situation, the review may be with the aid of a jury, or without it, as the legislature deems advisable.
In New York, a claim of error brought from a lower court to a higher court confers jurisdiction to the higher court of the facts as well as the law.
The higher court cannot institute a new factual inquiry, but it does take cognizance of those facts as they appear on the record, and pronounces the law arising upon it.
This is jurisdiction of both fact and law; it is impossible to separate them.
Similarly, the common law courts of this State unquestionably have jurisdiction of both fact and law, since those courts may proceed to judgment without a jury trial when the facts are undisputed.
Where the facts are disputed a jury ascertains them.
Under the Constitution, the grant of “appellate jurisdiction, both as to Law and Fact” to the Supreme Court will not permit it to reexamine a fact once ascertained by a jury.
If the Constitution ever should permit the Supreme Court to reexamine a fact once determined by a jury, it could either remand the cause to the court below for a second trial of the fact by a jury, or by directing a factual issue out of the Supreme Court for determination.
With respect to jurisdiction as to facts, the Convention may have reasoned that the appellate jurisdiction of the Supreme Court would extend to causes determined under both the common law and the civil law.
In common law cases, the proper province of the Supreme Court would generally be limited to revising the law.
In civil law cases, reexamination of the fact might be agreeable to usage. In some cases – prize causes for instance – reexamination of the facts might be essential to the preservation of the public peace.
In those cases, appellate jurisdiction should extend in the broadest sense to matters of fact.
The Convention could have made an express exception to the grant of jurisdiction in those cases originally tried by a jury, but this was impractical because in some of the States all causes are tried to a jury, and such an exception would preclude any revision of fact, whether proper or not.
To avoid all these difficulties, the safest course was to declare generally Supreme Court appellate jurisdiction both as to law and fact, subject to such exceptions and regulations as the national legislature (i.e., Congress) may prescribe.
This enables the government to modify it in such a manner as will best answer the ends of public justice and security.
From this viewpoint, it is obvious the supposed abolition of the trial by jury through the grant of appellate jurisdiction to the Supreme Court is fallacious and untrue.
The Federal legislature certainly has full power to provide there should be no reexamination of facts in appeals from causes originally tried by juries.
This would certainly be an authorized exception.
If it should be thought too extensive an exception, it might be qualified with a limitation to causes determinable at common law by a jury.
II. Lower Courts and Their Relations with the Supreme Court
A. The Power to Create Inferior Courts Should Be Used to Create National Courts Across State Boundaries
Turning to how the judicial authority is to be distributed between the supreme and the inferior courts of the union, the Constitution authorizes Congress to create “tribunals inferior to the Supreme Court.” Art. I, § 8, cl. 9.
The evident design of the provision is to enable the institution of local Federal courts, subordinate to the Supreme Court, either in States or larger districts, and to obviate the necessity of having recourse to the Supreme Court in every case of Federal cognizance.
It is intended to enable the national government to institute or authorize – in each State or district of the United States – a tribunal competent to the determination of matters of national jurisdiction within its limits.
B. Federal District Courts Are Necessary, for the Agency of State Courts Is an Inadequate Alternative
It will be found highly expedient and useful to divide the United States into four to six districts and to institute a Federal court in each rather than one in every State.
The judges of these courts, with the aid of State judges, may hold circuits for the trial of causes in the several parts of the respective districts.
Justice may be administered through them with ease and dispatch, with appeals safely circumscribed within a narrow compass.
This plan appears the most eligible of any that could be adopted.
It requires the power of constituting inferior courts be exercised to the fullest permissible extent under the Constitution.
The want of such a power would have been a great defect in the plan.
It might be said the same purpose could be accomplished by the instrumentality of the State courts.
The power to create “tribunals inferior to the Supreme Court” is broad enough to permit it, and the utmost latitude must be allowed as the fitness and competency of those courts.
But ought not a more direct and explicit provision have been made in favor of the State courts?
The substance of the power in question must be regarded as a necessary part of the plan, if it only to empower the national legislature to commit to national courts the cognizance of causes arising out of the national Constitution.
There also are substantial reasons against such a provision in favor of State courts.
State judges – holding their offices during pleasure or from year to year – will be too little independent to be relied upon for an inflexible execution of the national laws.
The most discerning individuals cannot foresee how far a prevailing local spirit may disqualify the local tribunals from the jurisdiction of national causes.
State judges – holding their offices during pleasure or from year to year – will be too little independent to be relied upon for an inflexible execution of the national laws. The most discerning individuals cannot foresee how far a prevailing local spirit may disqualify the local tribunals from the jurisdiction of national causes.
C. Assuming State Courts Are Utilized to Resolve Causes Involving National Laws, the Availability of Appellate Review Should Depend on the Confidence of Congress in those State Courts
If there is need for confiding the original cognizance of causes arising under national laws to State courts, there would be a correspondent necessity for leaving the door of appeal open as widely as possible.
The facility or difficulty of appeals should be proportionate to the confidence in, or distrust of, the subordinate tribunals.
I am well satisfied with the propriety of the appellate jurisdiction in the several classes of causes to which it is extended by the Constitution.
However, everything calculated to give practice to an unrestrained course to appeals would be a source of public and private inconvenience.
D. Federal Jurisdiction Will Not Abrogate State Sovereign Immunity
In order to arouse State opposition to the Constitution, some have suggested citizens from one State should be able to utilize the Federal courts to prosecute claims against a State which had issued them securities.
Although this issue digresses from the immediate subject of this paper, it has excited some alarm and merits refutation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without his or her consent.
This is the general sense and practice of mankind, and exemption from such suits is now enjoyed by the government of every State in the union.
Unless this immunity is surrendered in the Constitution, it will remain with the States, and the danger will exist merely as an idea.
The circumstances necessary to produce an alienation of State sovereignty were discussed in connected with taxation in Federalist 31 and others, and need not be repeated here.
The principles there established satisfy us the Constitution will divest no State government of the privilege of paying their own debts in their own way, free from every constraint save those flowing from the obligations of good faith.
The contracts between a nation and individuals are only binding on the conscience of the sovereign, with no pretension to a compulsive force.
They confer no right of action, independent of the sovereign will. It advances no purpose to authorize suits against sovereign States for the debts they owe.
No recovery could be had without waging war against the contracting State.
The Constitution does not destroy the preexisting sovereign right of the State governments, and it is altogether forced and unwarranted to ascribe to the Federal courts a power with such a consequence.
The summary of the observations hitherto made on the authority of the judicial department is this:
the judicial authority has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature;
that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals;
that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, subject to any exceptions and regulations which may be thought advisable;
that this appellate jurisdiction does, in no case, abolish the trial by jury; and
that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the new judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
Hamilton