The Federalist Papers

As with Presidents, judges’ salaries should never be reduced by the legislature, though their salaries may be increased commensurate with inflation. Hamilton goes on to say that judges should only be removed for bad behavior or insanity, but not for “inability.” He worries that a provision allowing for the removal of judges on grounds of inability would be easy to abuse. Moreover, Hamilton rejects proposals to remove judges when they reach a certain age, on the rationale that few individuals’ bodies outlast their minds.

Hamilton writes that cases brought before the federal judiciary may concern a wide array of disputes, including those between the United States and its citizens, between states, and between the United States and foreign nations or the citizens thereof. The Constitution also allows the federal judiciary to intervene when “the State tribunals cannot be supposed to be impartial and unbiased” (405). For example, if the State begins to collect import taxes in violation of the US Constitution, the federal judiciary is empowered to overrule these practices.

Quoting the Constitution, Hamilton details how federal judiciary authority will be distributed: “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” (410). He goes on to address critics who believe that the supreme arbiter of the law should be a part of the legislature. Although Hamilton does not believe this violates the maxim concerning the separation of powers, it comes too close for his comfort. He writes, “From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application” (412). Moreover, the qualifications that distinguish a great lawmaker are not the same as those that distinguish a great jurist.

Moving onto the issue of “inferior courts,” Hamilton’s rationale for their proposed existence is simple: It would be impractical to convene the Supreme Court in every dispute that falls within the federal judiciary’s jurisdiction. While critics argue that these disputes should be settled by state courts, Hamilton worries about state bias—or as he puts it, “the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes” (414).

Hamilton addresses “concurrent jurisdiction,” a concept that arises when both state and federal courts possess legitimate claims of jurisdiction. As with Hamilton’s earlier discussion of potential overlap between federal and state legislation, he says “as a rule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes [in the Constitution]” (424)

Critics object to the fact there is no provision in the Constitution concerning jury trials in civil cases. Hamilton makes clear that an absence of such a provision should not be misconstrued as a prohibition on civil jury trials.

Although Hamilton is confident he has answered the majority of objections leveled at the Constitution in the previous essays, there are a few that he missed and will address here. The most significant remaining objection is the Constitution’s lack of a bill of rights.

Hamilton argues that the Constitution already contains guarantees of various rights sprinkled throughout the document, including those pertaining to the right to trial by jury in criminal cases. Hamilton goes on to dismiss bills of rights as “stipulations between kings and their subjects, abridgements of prerogative in favor of privilege” (438). In the Constitution, however, Hamilton is proud to admit that “the people surrender nothing” (438). He goes even further to brand bills of rights as potentially dangerous, in that they create a pretext for curtailing liberty. For example, on the matter of press freedom, Hamilton asks, “What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” (440).

Finally, Hamilton address concerns that the government under the Constitution will be far more expensive than the government under the current Articles of Confederation. He dismisses these objections, arguing that the duties and administrations of the government are fundamentally the same—albeit differently distributed—save for the addition of a federal judiciary which will amount to a negligible expense.

Hamilton sees only two remaining issues to discuss: the analogous nature of the US Constitution and the state of New York’s constitution, and “the additional security which its adoption will afford to republican government, to liberty, and to property” (445). Concerning the first issue, Hamilton believes he has sufficiently addressed all significant differences between the two constitutions, including the lack of a bill of rights and the reelection of chief executives. On the second issue, he believes that the dominant advantage of the Constitution to republican government is its effectiveness at reducing the emergence of powerful and violent factions which may lead to insurrection.

Finally, Hamilton seeks to dissuade those who wish to amend the Constitution to relieve it of its flaws, on the grounds that it would be “the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan” (448). Moreover, he points out that amendments can always be made after the fact, as “TIME and EXPERIENCE” (451) with the document give citizens the wisdom to know how best to adapt it to new circumstances.