Federalist #78 and the Importance of Judicial Precedent

July 22, 2022June 4, 2023 ~ Blue Cereal

Excerpts from the Federalist Papers #78 (Alexander Hamilton)

The Federalist Papers were a series of 85 essays written by John Jay (5), James Madison (29), and Alexander Hamilton (51) to explain and defend the new Constitution in hopes of securing unanimous ratification. While not part of the document, they are generally considered one of the most reliable sources of the Framers’ intentions. Hamilton was the original “Federalist” in terms of his commitment to a strong central government and an expansive reading of the Constitution and the powers it grants to the various branches. Unlike Thomas Jefferson, who was primarily concerned with protecting the liberties of individuals, Hamilton’s focus was on strengthening the powers of the federal government sufficiently to ensure its long-term success. And yet, here in Essay #78, he argues that lifetime appointments are essential in the judicial branch in order to assure attention to precedent and consistent protection of individual liberties from legislative abuse.

WE PROCEED now to an examination of the judiciary department of the proposed government…
{T}he judiciary is beyond comparison the weakest of the three departments of power… {T}hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” … {Since} liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments… {and since the judicial branch is the weakest of the three,} nothing can contribute so much to its firmness and independence as permanency in office{. T}his 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.

We might debate whether or not Hamilton was correct to consider the judicial branch the “weakest” of the three, but what’s important here is the idea that the lifetime tenure of justices was intended to provide consistency in the nation’s highest court. Notice also his assumption that one of the primary purposes of the Court is to protect the “general liberty of the people” and act as the “citadel of the public justice and the public security.” While Hamilton was speaking primarily of national government (it would almost a century before constitutional protections were automatically assumed to apply at the state and local level via the Fourteenth Amendment), this understanding of the judicial branch is antithetical to the idea that “faithfulness” to the Constitution requires stripping away established protections in order to better facilitate state-level abuse of personal liberties.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid…

The power of “judicial review” was formally claimed by the Supreme Court in its landmark decision in Marbury v. Madison (1803). The concept, however, was established long before then. One of the primary reasons Jefferson and Madison had so much trouble garnering support for their Virginia and Kentucky Resolutions (1798-1799) which promoted state “nullification” of the Alien and Sedition Acts was that even state legislatures who didn’t love these statutes deferred to the appropriate branch of government for dealing with such things. In this essay, Hamilton is not suggesting “judicial review” as a potential power of the Supreme Court; he’s explaining and justifying it as something clearly granted under the new Constitution… even if it wasn’t spelled out in exactly those words.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far 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 limits assigned to their authority.

Until Justice Clarence Thomas and his ilk manage to effectively neuter the Fourteenth Amendment, it’s reasonable to apply this philosophy to state governments as well as the national Congress. The original purpose of the Fourteenth Amendment, after all, was to decry “states’ rights” when they violated more fundamental (and more important) natural rights.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor 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 statutes, 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.

President Andrew Jackson saw himself as defending the “common man” from the corrupted powers of their elected legislators. According to Hamilton, however, the primary defense of the people from legislative bodies is the courts. That’s not “judicial activism,” according to one of the strongest proponents of powerful central government in our history – it’s one of the judicial system’s primary functions.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference…

What Hamilton is essentially talking about here is stare decisis – the importance of maintaining judicial precedents. When laws (or, say… clauses in the First Amendment) clash or pull against one another, it’s the job of the Supreme Court to figure out the best understanding of those laws and establish this as the correct meaning.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Hamilton may not have been quite the progressive crusader suggested by his musical, but he’s at least pro-Warren Court here.

It’s worth repeating – a primary duty of the courts is to protect individual liberties (in this case, minority rights specifically) from legislative abuses. That’s not “exceeding” their constitutional role, at least according to the guys who wrote the damn thing.

Surely you can’t get much more “originalist” than that.

Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

It’s nice of him to go ahead and validate the January 6th hearings while he’s at it. Alexander “Nostradamus” Hamilton, at your service.

Hamilton continues making his point that lifetime tenure is essential for the judiciary to effectively protect individual liberty against potential abuses by the other two branches (but mostly the legislative). Apparently he doesn’t consider elected representatives to always be the best judges of what the Constitution does and doesn’t protect. Huh.

It turns out there’s even a more important reason for those lifetime appointments – they help protect stare decisis by making justices less likely to overturn established precedents in service of their own ideological whims. At least, that was the idea.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…

Precedent matters. It’s not inviolable, but it should carry greater weight than “yeah, but we don’t like how the last fifty years or so have gone.” It should certainly trump “you don’t know how long the Federalist Society and rich white evangelicals have been working to reverse course on this stuff!”

Hamilton was concerned that excessive turnover on the bench would produce justices insufficiently schooled in established jurisprudence. He did not account for the possibility that they’d know damn well what’s been said and done before but simply pick and choose selected bits to justify their predetermined outcomes while ignoring context and inevitable impact.

{T}here can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And… the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

You said it, Alexander.

Is That A Right?

July 16, 2020June 4, 2023 ~ Blue Cereal

Don’t get excited – I’m not diving into current events or anything. (I’m far too demure for such things.) In fact, I’m intentionally avoiding the subject at the moment because any effort I make to write rationally about what we’ve become ends up as a spittle-spewing, obscenity-laden rant and, worse, totally off-brand. Those of you who follow me on Twitter or Facebook, where I’ve lost even the veneer of professionalism or decency towards my fellow man, can no doubt verify this assertion.

Instead, I’d like to share two very simple things you may find useful. Or, you may not. You may find yourself a little bit sad for me if these are my best new cutting-edge distance learning ideas at the moment. Either way, I’m giddy enough for both of us.

“Is That A Right?” is the name of an activity I’ve done with American Government and American History classes for years, and which I’m considering trying “virtually” this fall if circumstances lead us down that path.

It’s not even an overly innovative lesson. It’s really just a PowerPoint presentation with a series of descriptions of potential “rights” as per the U.S. Constitution. Students vote ‘Yes’ if they believe whatever’s on the slide is a protected right and ‘No’ if they don’t, and we discuss it a bit (“Tasha, why do you think so?” or “So, Garrett… would you still say that’s a right if we change the wording to what Tasha said?” You guys know how discussions work.) The next slide tells us the “right” answer, often with disclaimers about how it’s actually a bit more complicated than that – because it’s almost always a bit more complicated than that. Then we go to the next one.

I recently converted the most recent version of this presentation into Google Slides. You can access it in its entirety right here. If it’s something you’d like to use, all you have to do is make a copy (File, Make a Copy…) and it’s yours. Once you’ve copied it, you can change prompts, explanations, images, etc., just like with PowerPoint.

So how could we do this if we’re not in the same place?

I’ve had the privilege of co-teaching several workshops with an amazing history teacher from the Houston area named Barrett Doke. He’s one of those guys that loves technology, but always as a tool for putting more of the learning into the hands of the students and never as an end in and of itself. We all say that’s how we want to use technology – but he actually does it that way. (Now, the rest of you don’t get all defensive – I’m sure MANY of you are just as wonderful. I’m just sharing my personal warm fuzzies.)

Doke is partial to Google Slides and gets rather… enthusiastic when given the chance to share the many simple things you can do with them to make your lessons more flexible and your technology more useful without investing endless hours or – and this is a biggie – relying on your district to purchase and maintain subscriptions to specific apps or equipment. He showed me something he liked to do in Slides that would never have occurred to me. (As I said at the outset, it’s entirely possible this is obvious to everyone else in the world besides me. I can live with that.)

If you adjust the ‘View/Zoom’ for your slideshow while NOT in ‘Presentation’ mode, you’ll discover there’s all sorts of unused space around each slide. You may have stumbled across this in the past when moving around graphics or setting up animation. As it turns out, you can put stuff in these margins and it will be saved and accessible along with everything else, even though it’s not part of the slide.

I KNOW, RIGHT?!

Doke often uses this space for what I think of as ‘tokens’ which students can access. These can be numbered or customized to include their names (although the tokens have to be slightly larger that way). Whether they’re all in class together or meeting virtually (but synchronously), he’ll pose a question or prompt and offer the same sorts of options you’d see with multiple choice. Students move their tokens to the part of the slide which best reflects their response, then Doke calls on a few to explain why they chose what they did. Because they’re all on the same document, everyone sees what everyone else is answering – just like in class.

Yes, this is very similar to what Pear Deck does. I’ve not used Pear Deck extensively, but I hear great things. It might actually do this particular type of activity a bit better. I don’t have it, however, so it’s not a factor.

Here’s the long distance version of the same activity. I’ve used it with teachers successfully, but haven’t yet had the chance to do it this way with students. You’ll have to make your own copy (File, Make a Copy…) if you’d like to use it.

I like several things about this lesson in this format:

The discussions are still the discussions. They’re the key to the lesson being meaningful and the information sticky. Without good discussions, it’s just another quiz.

Anytime you can have synchronous (i.e., “live”) student responses in a form other than asking them to speak up in class, you change the dynamics and who’s likely to participate. That’s not to say it magically guarantees full engagement, but students who may not take initiative in class will often drag their token to the answer they like best.

If you have particularly shy or fragile students, the alpha-numeric system allows a degree of anonymity. One of my priorities is usually creating a dynamic in which everyone learns to speak up, and in which disagreement is healthy and means you respect the other person enough to challenge them, so anonymity is not a priority to me. Plus, it’s difficult to have discussions, even online, anonymously.

Finally, the slideshow is easily shared with students. It’s forever available should they choose to review anything or question anything after having time to think about it.

There are, of course, several downsides:

It’s tricky to keep track of who’s who on Slides. On Google Docs or Google Sheets, students logged in to their school Gmail show up on my screen as a cursor with their name next to it. I can also check version histories and edits in case there are shenanigans. I’m not sure Slides has a similar feature, and even if it does, it won’t help you if your students don’t have school Gmail accounts. That means in theory, anyone can move any number. (Then again, is there ANYTHING in class – virtual or otherwise – that’s completely bozo-proof?)

In order for students to have access to move their tokens around, I have to give them access to ‘Edit’ the Slideshow. That means in theory, they can add or delete slides or change other elements of the activity. I’ve made messing with the slides (accidentally or otherwise) a bit more difficult by ‘locking in’ everything except the tokens themselves. If you’ve made your own copy of the “Long Distance” version of the activity, you may have noticed that while you can move the tokens around, you can’t move around shapes or text on the slides like you normally could. It’s still possible – for you or anyone with ‘Edit’ access – but it’s more laborious and would require both knowledge and focused intent. This is thanks to another cool thing Doke showed me that is gradually changing my online instructional world. (Again, keep in mind that I’m nearly a thousand years old and still both startled and impressed by things like lava lamps or instant music downloads.)

If anyone’s interested, I’ll try to talk about ‘locking in’ elements of various slides next time. I’m learning to get better at doing it, but I’m not yet adept at explaining it. For now, you’re welcome to play with “Is That A Right?” and let me know how it works out. Keep in mind that you’ll have to make your own copy before it will let you edit anything or even move those little tokens around. Obviously, once you’ve made your own copy, you can add far more antagonistic, current event-related slides of your own and blame it on that guy who posted it on the internet to begin with.

You absolutey have that right.

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“Have To” History: A Wall of Separation

December 18, 2019June 4, 2023 ~ Blue Cereal

NOTE: I’ve finally completed “Have To” History: Landmark Supreme Court Cases (or at least the initial draft). At the moment, it’s available on Teachers Pay Teachers and intended to be an easily affordable resource for pretty much any American History or Government teacher of whatever level – from 8th Grade Civics to APUSH. I’m not looking to make serious money or anything, but it took a long time to write and edit, so until I have time to pursue other avenues, there it is.

In the meantime, it’s on to the resource book I’ve wanted to put together for a much longer time – Supreme Court cases related to religion in the public square, particularly in relation to public schools. I find the topic fascinating and the cases and their written opinions far more engaging than pretty much anything else in the annals of jurisprudence. I realize this makes me both weird and slightly pathetic, but so be it. This post is the first chapter of this new undertaking. If you’d like to read more, go buy the first one so I can afford to order pizza and keep working on it.

“Have To” History: Stuff You Don’t Really Want To Know (But For Some Reason Have To) About The “Wall of Separation”

Three Big Things:

1. The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general.

2. The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be.

3. The 14^th Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the 14^th Amendment is known in legal circles as “incorporation.”

Background: A Bill of Rights

The U.S. Constitution was written as a replacement for the Articles of Confederation – the new nation’s first effort at writing a broad set of laws by which to govern itself. The Articles had guaranteed the States almost complete sovereignty and absolute independence from one another – a great idea in theory, but not as workable in practice.

It was understandable that the Framers would err on the side of freedom, having finally won an extended and bitter war with the Motherland over a King they’d claimed was a “tyrant.” There were over two dozen specific examples of his excessive rule-making and liberty-crushing behavior included in the break-up letter penned by the Colonies – a missive better known as the “Declaration of Independence.”

But they had, perhaps, swung a bit too far away from structure and security. The Constitution was an effort to rectify the resulting difficulties. Turns out that sometimes, thoughtful limits actually grease the gears of liberty.

When the U.S. Constitution was finally ready for public review and debate in the late 1780’s, there were many who thought we’d once again overcompensated – this time back towards too much central authority and too little freedom. They wanted some sort of written guarantee they wouldn’t be oppressed by this bigger, stronger government.

The authors were appalled at this concern. Obviously, any powers not specifically granted to the national government by this document remained with the States and the People thereof! To spell out those protections would be… redundant! Possibly even limiting! What if listing some specifically guaranteed rights implied that they were the only ones thus secured?!

It almost got ugly.

Nevertheless, a compromise was reached. The Constitution was ratified, and a collection of ten clarifying Amendments almost immediately passed as a package deal. Thus, the “Bill of Rights.” Despite the numbering system, there are far more than ten rights included. Some Amendments, like the Fourth, Fifth, and Sixth, are packed with due process and thick verbiage. Others, like the Eighth, are fairly crisp – although written in such a way as to allow at least 225 years of subsequent debate as to exactly what they mean.

The Third is all but irrelevant. The Seventh, strangely technical. The Second – well, the Second was badly written from the moment it was passed. Whatever it did or didn’t intend to say about the right to “bear arms,” James Madison’s English teacher must have had a fit.

But the best-known is probably the First.

The First Amendment

The First Amendment contains six specific protections, somewhat related, and presumably so very important that they all tied for first when the Framers were debating what to guarantee the mostiest mostest:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These are the biggies that squeezed in ahead of militias and quartering of soldiers, and even beat out due process in order of presentation. The right to protest. The right to associate with whomever you wish, including but certainly not limited to political organizations of any and all stripes. Freedom of the press and of speech – absolute linchpins to any nation hoping to maintain the slightest credibility as a true democracy.

But coming ahead of all of them – earning the first two slots in all of Amendment-dom – are the twin ‘freedom of religion’ clauses.

Congress shall make no law respecting an establishment of religion…

In the most basic terms, this says the government may not do anything to promote or encourage a particular religion or the concept of religion in general. Doing so creates a double curse. It leads to the marginalization and eventual persecution of those with different beliefs (whether that difference is major or minor), AND it soils the very faith the government is promoting by making it a tool of secular authority, regulated by political maneuvering and flawed men rather than one’s own spiritual journey.

A faith mandated by the guys with guns and the keys to the jail is, of course, no faith at all.

Or prohibiting the free exercise thereof…

This is the part which says that the government may not do anything to discourage, limit, or punish a particular religion or the concept of religion in general. Hopefully the problems with that sort of behavior are self-evident.

The President and Some Baptists

As to the phrase “wall of separation between church and state,” we have Jefferson to either thank (or blame, depending on your point of view). Well, him and the Baptists.

In 1801, while Jefferson was President, he received a letter from the Danbury Baptists Association in Danbury, Connecticut. They had some concerns about religious freedom and what they saw as inadequate delineation between the secular and the spiritual:

Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, {and} that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor.

These Danbury Baptists were asserting that faith is between the individual and his God, while the government is simply supposed to keep us from killing one another or taking each other’s stuff. That’s it – no getting involved in issues best left to the pulpit or the prayer closet. They were frustrated at what they perceived as local governmental practices, indirectly promoting on sect over another, and a growing tendency for those seeking power to fling accusations of godlessness at opponents who refused to use their secular authority to do the same.

Way back in the day, that is.

That is, however, the logical and historical result when you have a religious population and a government of-the-by-the-for-the people. It’s natural to want government to step in and take “your side.” It’s the flip-side of religious freedom – where two or more or gathered, they’ll immediately begin arguing about the finer points of hermeneutics. Unless a government makes substantial and ongoing efforts to avoid such entanglements, those arguments naturally spill over into the secular realm.

It was Jefferson’s reply which gave expression to what has become the most common understanding of the First Amendment’s guarantees regarding matters of faith:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

There it is.

By itself, it’s just a phrase in a letter. But it’s a phrase in a letter which has been repeatedly referenced and validated in Supreme Court decisions and has become an entrenched and widely accepted interpretation of First Amendment protections through case law and sheer longevity. In other words, it’s as close to belonging in the actual text of the Constitution as something can be without actually being in the text. Then again, it didn’t really matter very much for the next hundred years.

The 14^th Amendment and “Incorporation”

Prior to the 14th Amendment, the protections offered by the Bill of Rights applied exclusively to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted. The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead. Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of. It made it as far as the bus. The case was , and it began a long and winding path of jurisprudence shaping the relationship between religion and public schools.

Spoiler alert: not everyone would be happy with the results.