It was a coincidence. Really. As certain members of the current Supreme Court of the United States dripped bizarre and inconceivable fantasies into our ears, I was reading Alexander Hamilton’s brilliant soliliquies on the spanking new Constitution.
Toward the end of the Federalist Papers, Hamilton writes about our judiciary in six of the papers. As you can imagine, I devoted special attention to these segments.
In the paragraph I quote at the bottom of this post, Hamilton discusses why the attributes of the Court, especially life tenure, would not lead to abusive behavior by the justices.
But first…We, today’s People, can read these earlier lines from Federalist No. 79 with bitter humor, so I applied emphasis to insure you won’t miss laughing and/or spitting:
Next to permanency in office, nothing can contribute more to the independence of the judges than fixed provision for their support…The plan of the convention accordingly has provided that the judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”
So, the idea was, we’ll pay the justices so they won’t be open to corruption. Oh. Good.
But the paper I was reading the day before the hearing on Trump’s “immunity” included the paragraph that follows — Hamilton’s assurance that the Supreme Court would never represent a danger to our government, to us. Oy.
Although what follows, from Alexander Hamilton’s Federalist No. 81, “The Judiciary Continued, and the Distribution of the Judicial Authority,” was composed in one paragraph in 1788, I’m going to break it down so you can receive the same punch to the 2024 gut I got when I read it slowly, one sentence at a time.
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom.
Me: Because the justices would never try to arrogate to themselves the power to write laws, a power solely granted to the legislature. No way, no how.
Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.
Me: (deep deep wrenching sigh. Deep.)
This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness…
Me: Do you think the Fascist Four are furiously aware that Hamilton described their powers as comparatively weak? 236 years later they have sullen objections.
…and from its total incapacity to support its usurpations by force.
Me: Ah ha! Here’s the key. Nowadays this seems even more significant than the power of the Senate to try an impeached justice for bad behavior. The thing is, SCOTUS’s power as the final interpreter of our laws is uninforceable. They don’t have a police force. Their power rests solely in our — i.e., We The People’s — good will and respect. Again, I’m wondering what will happen if SCOTUS decisions are ignored or overridden in certain areas which object to them.
And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department.
Me: OK, so the legislature can institute the impeachment process against any SCOTUS justice who tries to write a law supporting, say, the notion that one particular president can be immune from prosecution.
Me: Can the legislature institute an impeachment process against any SCOTUS justice who is openly dissatisfied with his reumuneration? And gets all sorts of financial perks from rich people who want his judicial support?
This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.
Throughout my reading of the Federalist Papers, I’ve been struck with the genius, the invention, the fearlessness of these guys who composed a form of government unique to humanity. And particularly with Hamilton, I’ve loved his high spirits and pure belief in this radical new system. He seems to have great respect for the wisdom of us people, a respect that approaches non-sectarian faith.
Hamilton’s stated belief in the honor and integrity of these government officials, especially those on the court whose actions can’t be rebuked by the people who could remove them in an election, conveys a trust in people when freed from the model of government for millennia — tyranny.
It seems Alexander Hamilton was an optimist, so much so I feel he radiates a sort of innocence about this great thing he helped to create.
I remain optimistic but not entirely innocent.