[New York, March 3, 1802]
It is generally understood that the Essays under the Title of the Federalist, which were published at New York, while the plan of our present Federal Constitution was under the consideration of the people, were principally written by two persons* who had been members of the Convention which devised that plan, and whose names are subscribed to the instrument containing it. In these Essays† the principles advanced in the last number of this Examination are particularly stated and strongly relied upon in defence of the proposed Constitution; from which it is a natural inference that they had influenced the views with which the plan was digested. The full force of this observation will be best perceived by a recurrence to the work itself; but it will appear clearly enough from the following detached passages.
“One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim that the Legislative, Executive and Judiciary Departments ought to be separate and distinct.” “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all power, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many; whether hereditary, self appointed or elective, may justly be pronounced the very definition of tryanny.”* “Neither of the three Departments ought to possess directly or indirectly an overruling influence over the others in the administration of their respective powers.” “But the most difficult task is to provide some practical security for each against the invasion of the others.”
“Experience assures us that the efficacy of parchment barriers has been greatly overrated, and that some more adequate defence is indispensably necessary for the more feeble against the more powerful members of the government. The Legislative Department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” “In a representative republic, where the executive magistracy is carefully limited both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” Again, “The tendency of Republican Governments is to an aggrandizement of the Legislature at the expence of the other Departments.”3
These passages recognise as a fundamental maxim of free government, that the three departments of power, ought to be separate and distinct; consequently that neither of them ought to be able to exercise, either directly or indirectly, an overruling influence over any other. They also recognize as a truth, indicated by the nature of the system and verified by experience, that in a Representative Republic, the Legislative Department is the “Aaron’s Rod” most likely to swallow up the rest,4 and therefore to be guarded against with particular care and caution: And they inculcate that parchment barriers, (or the formal provisions of a constitution designating the respective boundaries of authority) having been found ineffectual for protecting the more feeble against the most powerful members of the government, some more adequate defence, some practical security is necessary. What this was intended to be will appear from subsequent passages.
“To what expedient shall we finally resort for maintaining in practice the necessary partition of power among the several Departments as laid down in the Constitution?” “As all exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent Departments may, by their mutual relations, be the means of keeping each other in their proper places.”*
These passages intimate the “practical security” which ought to be adopted for the preservation of the weaker against the stronger members of the Government. It is so to contrive its interior structure that the constituent organs may be able to keep each other in their proper places; an idea essentially incompatible with that of making the existence of one dependent on the will of another. It will be seen afterwards how this structure is to be so contrived.
“In order to lay a foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty; it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. This principle rigorously adhered to would require that all the appointments for the several departments should be drawn from the same fountain of authority, the people.” But “In the constitution of the Judiciary Department it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be [to] select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that Department, must soon destroy all sense of dependence on the authority conferring them.”
“It is equally evident that the members of each Department should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the Executive Magistrate or the Judges not independent of the Legislature in this particular, their Independence in every other would be merely nominal.” “The great security against a concentration of the several powers in the same Department consists in giving to those who administer each Department the necessary constitutional means and personal motives, to resist encroachments of the others.” “But it is not possible to give to each Department an equal power of self-defence. In Republican Governments the Legislative authority necessarily predominates.”5
The means held out as proper to be employed, for enabling the several departments to keep each other in their proper places, are:
1. To give to each such an organization as will render them essentially independent of one another. 2. To secure to each a support which shall not be at the discretionary disposal of any other. 3. To establish between them such mutual relations of authority as will make one a check upon another, and enable them reciprocally to resist enroachments, and confine one another within their proper spheres.
To accomplish the first end, it is deemed material that they should have as little agency as possible in the appointment of one another, and should all emanate directly from the same fountain of authority—the people: And that it being expedient to relax the principle, in respect to the Judiciary Department, with a view to a more select choice of its organs; this defect in the creation ought to be remedied by a permanent tenure of office; which certainly becomes nominal and nugatory, if the existence of the office rests on the pleasure of the Legislature. The principle that the several organs should have as little agency as possible in the appointment of each other, is directly opposed to the claim in favour of one of a discretionary agency to destroy another. The second of the proposed ends, is designed to be effected by the provisions for fixing the compensations of the Executive and Judicial Departments—The third, by the qualified negative of the Executive, or the acts of the two houses of Congress; by the right of one of these houses to accuse; of the other to try and punish the Executive and Judicial officers; and lastly, by the right of the Judges, as interpreters of the laws, to pronounce unconstitutional acts void.
These are the means contemplated by the Constitution, for maintaining the limits assigned to itself, and for enabling the respective organs of the Government to keep each other in their proper places, so that they may not have it in their power to domineer the one over the other, and thereby in effect, though not in form, to concentrate the powers in one department, overturn the Government, and establish a Tyranny. Unfortunate if these powerful precautions shall prove insufficient to accomplish the end, and to stem the torrent of the Imposter—Innovation disguised in the specious garb of Patriotism!
The views which prevailed in the formation of the Constitution are further illustrated by these additional comments from the same source.*
“As liberty can have nothing to fear from the Judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the Judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security.”
“The complete Independence of the Courts of Justice is peculiarly essential in a limited constitution. Limitations can be preserved in practice no other way, than through the medium of the Courts of Justice to declare all acts contrary to the manifest tenor of the Constitution void.”
Then follows a particular discussion of the position, that it is the right and the duty of the Courts to exercise such an authority: to repeat which, would swell this number to an improper size.
The essence of the argument is, that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void; consequently that no legislative act, inconsistent with the Constitution, can be valid. That it is not a natural presumption that the Constitution intended to make the legislative body the final and exclusive judges of their own powers; but more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the bounds assigned to its authority. That the interpretation of the laws being the peculiar province of the Courts, and a Constitution being in fact a fundamental law, superior in obligation to a statute, if the Constitution and the statute are at variance, the former ought to prevail against the latter; the will of the people against the will of the agents; and the Judges ought in their quality of interpreters of the laws, to pronounce and adjudge the truth, namely, that the unauthorised statute is a nullity.
“Nor (continues the commentator) does this conclusion by any means suppose a superiority of the judicial to the legislative power. 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, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
“If then the Courts of Justice are to be considered as the bulwarks of a limited constitution, against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of Judicial offices.”6
But no proposition can be more manifest, than that this permancy of tenure must be nominal, if made defeasible at the pleasure of the Legislature, and that it is ridiculous to consider it as an obstacle to encroachments of the Legislative Department; if this department has a discretion to vacate or abolish it directly or indirectly.
In recurring to the comments which have been cited, it is not meant to consider them as evidence of any thing but of the views with which the Constitution was framed. After all, the Instrument must speak for itself. Yet to candid minds, the co-temporary explanation of it, by men, who had had a perfect opportunity of knowing the views of its framers, must operate as a weighty collateral reason for believing the construction agreeing with this explanation to be right, rather than the opposite one. It is too cardinal a point, to admit readily the supposition, that there was misapprehension; and whatever motives may have subsequently occurred to bias the impressions of the one or the other of the purposes alluded to, the situation in which they wrote, exempts both from the suspicion of an intention to misrepresent in this particular. Indeed a course of argument more accommodating to the objections of the adversaries of the Constitution would probably have been preferred as most politic, if the truth, as conceived at the time, would have permitted a modification. Much trouble would have been avoided by saying, “The Legislature will have a complete controul over the Judges, by the discretionary power of reducing the number of those of the Supreme Court, and of abolishing the existing Judges of the Inferior Courts, by the abolition of the Courts themselves.” But this pretension is a novelty reserved for the crooked ingenuity of after discoveries.
New-York Evening Post, March 3, 1802.
1. For background to this document, see the introductory note to “The Examination Number I,” December 17, 1801. See also “The Examination Number V,” December 29, 1801; “The Examination Number VI,” January 2, 1802; “Remarks on the Repeal of the Judiciary Act,” February 11, 1802, note 1; “The Examination Number XII,” February 23, 1802; “The Examination Number XIII,” February 27, 1802; “The Examination Number XIV,” March 2, 1802.
2. H is generally credited with having written The Federalist essays numbers 1, 6–9, 11–13, 15–17, 21–36, 59–61, 65–85. Madison wrote the essays numbers 10, 14, 18–20, 37–49, 53, 59. John Jay wrote the essays numbers 2–5 and 64. The authorship of essays numbers 50–52, 54–58, and 62–63 is disputed and has never been determined conclusively. See the introductory note to “The Federalist No. 1,” October 27, 1787.
3. “The Federalist No. 48,” February 1, 1788.
4. ‘And Moses and Aaron went in unto Pharaoh, and they did so as the Lord had commanded, and Aaron cast down his rod before Pharaoh and before his servants, and it became a serpent” (Exodus 7:10).