Federalist 81 Paraphrased

 Federalist No. 81 - The Judicial Branch will have limited power, and won't eliminate trial by jury     paraphrased into modern English

by Alexander Hamilton, June 1788

To: the people of New York,

Let's get back to how judicial authority is divided up among the different courts, and how the different courts relate to each other.  The Constitution says, 'The judicial [legal] part of the United States will be settled in one supreme court, and as many inferior courts [lesser courts that serve under the Supreme Court] as Congress might add from time to time.' I doubt anyone will disagree that there should be one ultimate court making final decisions. We've explained the reasons for setting it up this way elsewhere, and the reasons are too obvious to need repeating here. The only question is whether the judicial system should be its own distinct branch of government, or whether it should be included as part of the legislative branch. The criticism made here is the same criticism that has been made regarding other situations. The men who don't think the Senate should try impeachment cases because it mingles powers inappropriately are the very same men who declare, or at least imply, that it's appropriate to allow all or some of the legislative branch to have the power to make final judicial decisions.

Their rationale goes something like this: 'The proposed supreme court of the United States is going to be its own separate branch, and it will have more power than the legislative branch. Giving the judicial branch the ability to interpret the laws so that they are consistent with the spirit of the proposed Constitution will give the court the authority to shape those laws into whatever form it thinks is appropriate. This is even more true because its decisions won't be subjected in any way to being adjusted or corrected by the legislative branch. This is unheard of, and dangerous. In England, the final approval of judicial decisions depends on the House of Lords [similar to the U.S. Senate], which is part of the legislative branch [Parliament]. The U.S. Constitution has copied this overall framework of the British government. Any time they need to, both the Parliament of Great Britain and the various state legislatures can fix any objectionable decisions that their courts make by changing the law. But any errors or power-grabbing of the U.S. Supreme Court will be beyond the control of the legislature and, therefore, unable to be corrected." hat's their argument, but upon closer inspection, one can see that it’s built on flawed thinking and inaccurate facts.

First of all, the proposed Constitution doesn't say one word that plainly gives the federal courts the authority to interpret the laws so that they are consistent with the spirit of the Constitution, or that gives them any more leeway in this than State courts have. Admittedly, the Constitution should be the standard for making any new laws, and where a law is obviously at odds with the Constitution, that law should yield to the Constitution. This principle wasn't the decided result of some specific incident discussed during the meetings to plan the Constitution. It's merely the natural assumption of what it means to have a Constitution  that limits government. Whatever truth there may be to this objection can also be said of most, if not all, of the various State governments. Thus, any criticism of this principle regarding the Supreme Court is also a criticism of every State Constitution that puts limits on their legislative branch's wisdom.

But perhaps the main point of the argument has to do with the specific way the Supreme Court is organized--in the fact that it will be made up solely of a group of judges instead of being a third branch of the legislature, like it is in Great Britain and some of the States. But if they're going to make this criticism, the critics will have to deny the meaning they've worked so hard to attach to the famous phrase about the separation of the branches of power. The Federalist Papers puts the same interpretation on that famous phrase, and we agree that the separation of powers is not violated by giving the final authority to part of the legislative branch. But even though this doesn't totally violate that admirable principle of separation, it comes so close to violating it that this alone makes it less favorable than what we would have preferred when we planned the Constitution. If a group had even limited influence in passing bad laws, it would be surprising if they had the integrity to be reasonable in applying those laws. The character that helped make those bad laws would be just as lacking when they interpreted those laws. It would be even more surprising if the kind of men who violated the Constitution as legislators would be the kind of men who would fix that violation when acting as judges. But that's not all. Every rationale for allowing judges to serve as long as they're behaved is undermined by putting final judicial authority in the hands of men who are elected for a limited period of time. It's ridiculous to allow judges who serve for life to determine cases, but to allow those cases to be appealed and decided by men who are only serving for a temporary term [and who have to worry about being re-elected]. It's even more ridiculous to allow legal decisions that have been made by lawyers who were selected as judges because of the knowledge they gained after years of rigorous studying, to be revised and controlled by elected officials who haven't studied as thoroughly and who therefore can't possibly have as much knowledge. Members of Congress will rarely be elected with any thought of the legal qualifications that would make them suitable judges. This lack of accurate knowledge would lead to bad legal decisions. If you add the natural tendency for these kinds of groups of people to divide into political factions, it means there would be a risk of toxic political factions poisoning the fountains of justice. Being constantly swayed by opposing parties would erode the law and diminish fairness.

When we consider this, we admire the wisdom of the states whose Constitutions have separated their highest judicial authority from their legislative branch and put that judicial authority in the hands of a separate and independent group of men. Critics claim that the proposed federal Constitution designs some new and bizarre plan for the judicial branch, but that's not true. The Constitution does exactly what's already being done in New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and we approve of the decision to follow their example.

In the second place, it isn't true that the Parliament of Great Britain or the various state legislatures can fix any objectionable decisions that their courts make by changing the law any more effectively than they do already by passing laws to correct bad decisions. Neither the British Constitution nor the state constitutions gives authority to the legislative branch to revise a judicial decision. The proposed Constitution not only doesn't provide that authority, it outright forbids it. In both cases, the only thing stopping legislatures from reversing judicial decisions is that it would be considered improper on the basic doctrines of law and logic. A legislature can't overturn a decision once it's been made in a court case. That would be outside its authority--out of bounds. But a legislature can create a law for those cases that come up in the future. That's the rule for the various States, and it pertains in every respect in just the same way, and just as much, in the proposed Constitution. There is no difference at all.

And, finally, it's plain that the risk that keeps coming up of the judicial branch violating the authority of the legislative branch is ridiculous. The judicial branch may sometimes make mistakes and infringe on the will of the legislative branch, but never enough to be more than an annoyance, and certainly never to such an extent that they could change the structure of the government. The federal court system could never do any real damage because of the overall type of authority the judicial branch has, because of the kinds of cases it deals with, because of the way its authority operates, because of its weakness in proportion to the other branches, and because it is completely incapable of usurping the other branches by force. And this inability for the judicial branch to usurp its authority is made even more certain by the Constitutional power given to half of the legislative branch [the House of Representatives] to impeach judges, and to the other half [the Senate] to decide whether to remove the impeached judge from office. This provides complete assurance. As long as the legislators have the power to impeach judges, there can never be any threat that the judges would risk angering the entire legislative branch by deliberately making court decisions that would infringe on Congress's authority. This should ease any anxiety about the risk of the court overstepping its authority, and it also confirms that giving the Senate the power to remove impeached judges from office is a good idea. 

Now that we have considered criticisms about making the Supreme Court its own independent branch, and hopefully eased any anxiety on that account, let's examine whether it's a good idea to grant Congress the ability to create lower courts that operate under the Supreme Court, and the relationship between the lower courts and the Supreme Court.

The authority to create lower federal courts is designed to prevent every case related to federal issues from having to go to the Supreme Court. It is designed to give the federal government the ability to create or commission a court of justice in every state or district in the United States qualified to make decisions involving national cases within individual states and districts.

One might ask, couldn't this have been accomplished by using the existing State courts? There are different ways of looking at this question. We are fully confident in the competence of the State courts in every way. But they don't have the necessary authority to try federal cases. Perhaps Congress could authorize them to have the power to try the kinds of federal cases listed in the proposed Constitution. One might even say that giving State courts that kind of federal power counts as 'developing tribunals [courts and judges] under the Supreme Court.' [Article 1, Section 8, Clause 9] But if that's the case, then wouldn't the Constitution just say directly that State courts should be given authority over federal cases? In my opinion there are some very significant reasons why that arrangement isn't such a good idea. Even the most perceptive mind can't know whether some bias towards his own local area might disqualify a local judge from judging federal cases. And the way some State courts are run makes them unfit to be the judiciary authority over the entire country. State judges who are only in office as long as they want to be, or even only a year at a time, can't possibly be detached and independent enough to be trusted to fairly enact federal laws without bias. These more local judges would have circumstances of federal cases entrusted to them, and there would have to be an extensive opportunity to appeal the case after it had been decided. The ease or difficulty of appealing a case should be in proportion to the faith or lack of trust in these lower courts. I am content with the practicality of appellate jurisdiction [the authority of higher courts to review cases from lower courts if they are appealed] in the specific types of circumstances outlined in the proposed Constitution. But it would be cumbersome for both individuals and the government if a system was created that would result in unlimited opportunities to appeal every court decision.

I can't be sure, but I think it's going to be useful to divide the United States into 4-6 districts and to create a federal court in each district, rather than creating a federal court in every state. The judges in these federal district courts, with the help of local state judges, can hold circuits [a judge travelling to different locations within a region] to try cases in different parts of their district. With these district courts, justice will be carried out easily and quickly, and appeals can happen within a defined district. This seems like the most usable plan to follow, but it can only work if the ability to create lower courts is fully permitted in the manner described in the proposed Constitution.

Any unbiased mind can see from these reasons that not allowing the legislature to create lower courts would have made the plan defective. Let's look at how the judicial authority will be divided between the Supreme Court and the lower federal courts. The Supreme Court will only have original jurisdiction [cases that don't need to start in lower courts and work their way up to the Supreme Court] in 'cases that affect Ambassadors and other foreign officials, and cases where one of the states is a party.' Foreign ministers of all classes are direct representatives of their country's leader. Thus, all cases they're involved in are directly connected with national peace, and in order to prevent hostilities with another country as well as being respectful of the leaders these foreign ministers represent, it is practical and prudent that their cases should start at the highest court in the nation. Foreign ministers are not literally diplomats, they are public representatives of their nation and much of what applies to diplomats also applies to them. In cases involving one of the individual states, it would be an insult to that state's dignity to deliver their case to a lower court. Although it's a bit off-topic for this paper, I will also address a notion that has caused some concerns because of a misunderstanding. Some people have imagined that assigning one state's public money to the citizens of another state would allow them to sue that state in federal court to get that money back. But let me explain why that fear is unfounded.

A fundamental aspect of being a sovereign power means not being subjected to legal suits from individuals without the sovereign power's consent. This is commonly accepted, and common practice everywhere. This is commonly accepted, and common practice everywhere. And this applies to every State in the union, because each State is a sovereign power. As long as the proposed Constitution doesn't remove this immunity, the States will still be immune from being sued by individuals, so that danger doesn't exist. The only way for a State to lose its sovereignty was discussed in the Federalist Paper about taxation, so we don't need to repeat it here. Looking over the principles described in that Paper will ease our anxiety about the proposed Constitution removing every State's freedom to pay their own debts in whatever way they prefer, free from any enforced policies except for the duty to keep their promise to pay. Contracts between a nation and an individual depend on the nation's conscience to fulfill; there is no higher authority to force a nation keep its promise. A sovereign power can break its promise if it wants to. So what use would there be in authorizing individuals to sue a sovereign State over debts the State owes them? Who would enforce it? It couldn't be enforced without declaring war against that State. Giving that right to federal courts by destroying the rights that States already have and causing a war would be coercive and unlawful.

Let's continue with what we've observed. We've seen that original jurisdiction [cases that don't have to be appealed to get to the highest court, but start out at the Supreme Court] is limited to two kinds of cases, and those kinds of cases are rare. In all other federal cases, original jurisdiction doesn't start at the Supreme Court, it starts at a lower federal court. They would only be heard by the Supreme Court if they were appealed 'with some exceptions, and only following specific rules that Congress passes.'

The appropriateness of this method of appellate jurisdiction has hardly ever been questioned before as it regards the legal system, but suddenly critics are up in arms about applying it within the federal court system. Some well-meaning New Yorkers, getting their ideas from the terminology and methods used in their own court system, have concluded that the federal court system will replace trial by jury with the civil law system that is used in naval trials, inheritance hearings, and the office of public records. They're applying a technical sense to the term 'appellate,' which we're used to as it relates to appeals in civil law cases. [Civil cases involve a judge going over legal documents rather than a jury trial.] But the way I understand it, the term wouldn't be used that way anywhere in New England. [In the US and most states, the highest court is the Supreme Court. But in New York, their trial and intermediate appellate courts are called the Supreme Court; the Court of Appeals is their highest court. Jury members in their highest courts are called Justices, a term most states reserve for Judges.] Cases that are appealed will move from one court to another court, but [if they're "remanded," which means they're kicked back to the original court to be re-tried with a new jury] they'll still be heard by a jury, as we've become used to in the United States, until two separate juries come to the same conclusion. Thus the term 'appellate' means something different in New York than it does in the rest of the United States [In New York, the appellate Court of Appeals is the highest court, it's not a court that can send a case back to a jury to be re-tried.] You can't take the technical meaning of a word as used in a single state and apply that usage to the rest of the United States. The actual word literally means the authority of one court to review the transactions of another court, whether that applies to questions of law [interpreting legal terminology which a judge decides] or questions of fact [factual evidence which a jury decides]. The process in which that happens in practice can depend on ancient tradition, or on a newly planned method laid out by law (the new U.S. federal government will, of course, be using this second method). That might happen with or without a jury, whichever is appropriate for that particular case. If a question of fact [evidence in a trial] from a previous jury is appealed, then under the proposed Constitution, it would be kicked back to the original court to be heard by a new jury, or it might be brought before a higher court to be reviewed by a judge. [Appellate courts do not have juries; neither does the Supreme Court. In appealed cases that don't get kicked back to the original court for a redo, a judge would review the case to see if an error was made during the trial that justifies overturning the verdict.]

But that doesn't mean that retrying a question of fact that a jury has decided will always be heard by the Supreme Court. When a superior court in New York reviews a case from a lower court to see if an error was made, why shouldn't it be proper for the higher court to have jurisdiction over the fact [evidence] as well as the law [legal interpretation]? Admittedly the higher court can't start a new trial concerning the evidence, but they do read the proceedings as they appear in the court record and they determine whether the law was interpreted correctly based on those records. Thus they're exercising authority over both the fact [evidence] and the law [legal interpretation]. Fact and law are so closely related, it's impossible to separate them. New York's common law courts [common law courts base decisions on precedent, or prior legal cases] determine disputed facts using a jury, but that doesn't mean those courts don't have authority over both fact [evidence] and law [legal interpretation]. That's why, once the evidence is accepted by all parties, the trial doesn't go back to a jury, it goes to the judge for a final decision. Based on this, I assert that the phrase 'appellate jurisdiction regarding both law and fact' doesn't necessarily mean that the Supreme Court will re-examine factual evidence that was approved by the jury in a lower court.

This next train of thought undoubtedly influenced the Constitutional Convention concerning this part of plan. Some might be concerned that the Supreme Court's appellate authority will extend to both kinds of cases -- those that are determined by juries, and those that are reviewed only by a judge, depending on whether the case involves common law [based on prior decisions known as legal precedents] or civil law [based on statutes and legal codes]. In common law cases, the Supreme Court will only have authority to interpret the law. In civil law cases, it is widely accepted for the court to re-examine the evidence. In cases where money is at stake, re-examining the evidence may be the only means of peaceful resolution. Thus, the court hearing the appeal needs to have authority to examine the evidence. To exclude cases that were already tried by a jury won't work because, in some states, ALL cases are tried by a jury. Excluding jury cases would prevent re-examining cases involving factual evidence even when it's necessary. To prevent that inconvenience, it seemed safest to give the Supreme Court the authority to have appellate jurisdiction regarding both law and fact, and let Congress decide when exceptions should be made. This way the government can make whatever modifications are best to ensure justice for the public and national security.

Looking at it from this perspective, it's clear that the fear that trial by jury will be cancelled by giving the Supreme Court this authority is unfounded and incorrect. Congress would be able to pass a law saying that the Supreme Court would not be allowed to re-examine evidence when they reviewed cases that had already been tried by juries. Congress is authorized to make exceptions, so they would be allowed to make that exception. But perhaps, for the reasons I've already given, making such a blanket law would be too broad. In that case, Congress could make a more specific law that only limits the Supreme Court's ability to review evidence from common law cases that were already conclusively determined by a jury.

All of these observations about the authority of the judicial branch amount to the following: its authority has been carefully limited to cases which are clearly appropriate for a federal court; there are only a few kinds of cases that go directly to the Supreme Court, most cases have to start at lower courts; that the Supreme Court may review both fact [evidence] or law [legal interpretation] when those kinds of cases are appealed from lower courts, but with whatever exceptions and rules are considered appropriate; that the Supreme Court having authority to review these cases does not do away with jury trials; and that the normal common sense and integrity of Congress will be enough to provide genuine benefits from a judicial branch, but none of the drawbacks that critics have predicted.

Signed, "Publius Valerius Publicola."

Paraphrased by Leslie Noelani Laurio, April, 2021

All Federalist Paper Paraphrases