Monday, July 23, 2018

Federalist 50 and Judicial Review

In Federalist 49, James Madison famously rejects Thomas Jefferson’s proposal of relying on frequent appeals to the people for the purpose of “altering the constitution or correcting breaches of it.” In practice, Jefferson thinks this maxim would require regular constitutional conventions. Madison raises a series of “insuperable objections” to Jefferson’s proposal. He notes how frequent appeals to the people would produce frequent changes to the constitution (often for the worse) that will undermine the necessary “reverence for the laws." Even worse, Madison predicts that regular conventions would strengthen the legislature at the expense of the judiciary and the executive. That violation of the separation of powers would constitute, as Madison puts it in Federalist 47, “the very definition of tyranny.”

In Federalist 50, Madison turns to an alternative proposal. Rather than frequent appeals to the people, Madison considers the possibility of “periodical appeals” as the means “of preventing and correcting infractions of the constitution.” Importantly, the topic has moved from popular appeals to alter the constitution (Jefferson’s democratic proposal discussed in Federalist 49), to popular appeals merely to enforce the constitution (Madison’s topic in Federalist 50).

This more limited focus bears on the topic of judicial review. Madison is no longer thinking about how the people may exercise their sovereign right to amend the constitution. He is thinking more narrowly about institutional mechanisms to guarantee the constitution's separation of powers. To this end, Madison considers a scheme tried out in Pennsylvania between 1783 and 1784. The state experimented with a “council of censors,” the purpose of which was to inquire “whether the constitution had been violated; and whether the legislative and executive departments had encroached on each other.”

Unfortunately, Madison concludes, “this censorial body, therefore, proves at the same time, by its researches, the existence of the disease; and by its example, the inefficacy of the remedy.” The most important reason for its failure was its persistent partisanship. And against those who hope that we will one day be free of partisanship, Madison wisely observes that "such an event ought to be neither presumed nor desired."

Specifically, Madison lists five reasons why the council failed. (1) The council was composed of political partisans. (2) The leading members of the council had themselves been members of the executive and legislative branches, and so they were tasked, in effect, with assessing the constitutionality of their own conduct. (3) Because of the above, the council immediately “was split into two fixed and violent parties.” As a result, the councilors were moved by tribal passion rather than cool reason. (4) The council did not necessarily do a good job interpreting the constitution. And (5), there is no reason to believe that the other branches of government would obey rulings of the council.

My question here is how might these objections apply to our contemporary system of judicial review. There are of course a number of significant differences. Regarding objections (1) and (2), our current judiciary is composed of career judges and lawyers who usually have not themselves served in significant positions within the executive or legislative branches. This alleviates the potential difficulty of judges passing judgment on the constitutionality of their own actions. Objection (5) also no longer applies, as our current system grants the courts the final, authoritative say on matters of constitutional interpretation.

But objections (3) and (4)—not to mention the general principle underlying objections (1) and (2)—may well apply to judicial review as it is practiced by the Supreme Court today. It is impossible to de-politicize significant questions of constitutional adjudication. Our judges are political figures who can be generally relied on to rule in a manner that is consistent with the political aims of the party that appointed them. They are partisans. Or they otherwise have miraculous come to hold judicial philosophies which just so happen to align with their political party's priorities. Madison's reasons to be wary of partisans on the Pennsylvania council of censors can accordingly be applied to partisans on the federal Supreme Court.

Madison's preferred mechanism to guarantee the separation of powers is laid out in the next paper. Federalist 51 famously argues that the only way to maintain an equilibrium of powers is to pit the ambition of the legislature against the ambition of the executive. In my view, the prediction that the legislature will be inclined to jealously guard its prerogatives is the single most consequential error in Publius’ scheme. That said, our contemporary system of adjudicating constitutional disputes—granting the Supreme Court absolute power—has also failed. It is notable that Madison never seems to consider the possibility of the judiciary playing the role it currently does. I suspect if he did, the objections he lays out in Federalist 50 might apply to a proposed system judicial supremacy.

Perhaps Jefferson was right. Occasional appeals to the people in some form may be the best means of preserving the constitution and may be the most legitimate means of altering it. Jefferson was probably overzealous in calling for such frequent constitutional conventions. But his basic analysis has proved fairly prescient. Madison’s greatest fear was that the legislature might absorb too much power. But some branch of government will always step in to interpret (and effectively alter) the constitution. Our three options are: (1) A ceasarist Presidency; (2) A Supreme Court that laughably pretends to be apolitical; or (3) A Congress that takes the lead in interpreting (and effectively amending) the constitution. 

My sympathies lie with (3). A Westminster model of parliamentary supremacy strikes me as the most legitimate and effective means of dealing with questions of pure politics. But a substantial difficulty persists. Somehow the Congress must rediscover the ambition and the responsibility assumed by Publius, but entirely absent in contemporary political life. 

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