Today's Politicos vs The Words and Deeds of The Founders
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Federalist No. 80

Federalist 80 seems an especially tedious example of Hamiltonian prose. It is not as difficult to understand as some but, at least to this reader, appears unduly repetitive. Whatever the merits (or demerits of Hamilton’s organization) one power of the federal judiciary, the establishment of equity courts, may require more elaboration. According to

Equity is a system of justice administered according to standards of fairness (as opposed to standards imposed by specific laws or rules). Generally, equity follows the law. This means that applicable laws will be followed where they exist; where there are no applicable laws, principles of equity will be followed.

The Free On-line legal Dictionary, at, explains that these courts were established in England for situations that were not covered by law and to which the courts could not respond, or where too rigid enforcement of a law resulted in injustice rather than justice being done. To overcome this inflexibility, equity courts (also called courts of chancery) were established, based on broad principles of justice and fairness.

An article at states that Courts of equity also handled legal situations in which people might want damages beyond monetary damages, with the judge empowered to act on discretion, rather than following the rule of the law.  One example given is that it is unfair for one person to gain something of value at the expense of another. continues:

Thus an equitable principle arose–unjust enrichment. It may require someone to restore goods or money to another person if not doing so would lead to an unfair result. A court of equity has some legal responsibilities, but it has more leeway in judging cases. In its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of Common Law. Equity is also used to describe the money value of property in excess of claims, liens, or mortgages on the property.

In Hamilton’s time, as he notes in Federalist 80, some states had equity courts and some did not. Today, in most states, law and equity courts are merged. The Framers of the U.S. Constitution recognized the providence of equity by writing in Article III, Section 2, Clause 1, that the “judicial Power shall extend to all Cases, in Law and Equity.” Online legal encyclopedia

Federalist No. 80

To the People of the State of New York:

TO JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects.

It seems scarcely to admit of controversy, that the judicary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

In order to understand the design and limits of the federal judiciary, we will first examine its responsibilities. The judicial branch should be responsible for the following classes of cases:

  • Disputes arising out of legislation passed by congress
  • Constitutional interpretation
  • Disputes between individual citizens and the federal government
  • Disputes between the states or between the United States and foreign nations
  • Maritime disputes
  • Disputes where state courts are considered to be partial or biased

The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.

Regarding legislation enacted by congress, it should be obvious that for the Constitution to function, there has to be some way to enforce its provisions. For example what good are the restrictions placed on State legislatures if they can’t be enforced? The States are expressly prohibited from doing a number of things, either because they conflict with the interests of the Union, or simply because they are bad government. For example, States may not impose duties on imports and neither may they print their own currency. If there weren’t a way to enforce these restrictions, the States would surely ignore them. Thus the federal courts must have the authority to restrain and correct infractions of this kind. The power of the federal judiciary has to be such that it can either negate unconstitutional laws or overrule them. The framers of the constitution apparently came to the conclusion that this was the best course of action and the one most acceptable to the States.

As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.

Regarding responsibility for interpretation of the Constitution, it should be obvious that the federal judiciary would be responsible for the interpretation of federal law. It is axiomatic that the judicial and legislative branches have to operate in tandem and with equal authority. National laws must be interpreted consistently and this can only be achieved via federal judiciary. Imagine the chaos that would ensue with 13 separate State courts trying to come to agreement over any particular case.

Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.

Regarding disputes between the federal government and individual citizens, there is simply no other option, than to have these resolved by the federal judiciary. To do anything else would be irrational, depart from all legal precedents, and be inappropriate.

The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.

Regarding disputes between foreign nations and the nation as a whole, the federal judiciary must be the place where such issues are resolved. How could a single State’s court resolve a national issue affecting the whole union? Obviously, the whole Union will be answerable to any foreign power for the conduct of the States. Since it has this responsibility, it should also have some power to prevent problems before they occur. Since a controversial or unjust decision by a court could result in a declaration of war, the federal court must have jurisdiction on all cases in which citizens of other countries are involved. The confidence of the public in their government as well as their assurance of national peace relies on upon this. One might suppose that there could be a distinction between treaties and mere “municipal” or local ordinances; and that the federal judiciary would handle the former while it would be ok for the states to deal with the latter. But it is easy to imagine how an unjust judgement against a foreigner accused of breaking a local ordinance could escalate into an international issue. Because of the difficulty in determining a priori which cases might result in such escalations, it would be best to simply refer all cases involving foreign parties to the federal courts.

The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.

Just as important is the role of the federal judiciary in resolving cases between two States, between one State and the citizens of another, or between the citizens of different States. Even a brief study of pre 15th century German history shows how bad such internecine disputes can be when left to ambiguous methods of resolution. The establishment of the Imperial Chamber of Maximilian being given authority to decide such differences provides an excellent example of the benefits of federal judicial authority.

A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.

Even under the Articles of Confederation, the federal courts had the power to resolve territorial disputes between the States. But there are many other issues which could arise amongst the members of the Union. Some of these have been seen before in the form of bad legislation passed in the states. Although the proposed Constitution does try to anticipate these on the basis of past experience, obviously not every circumstance may be anticipated. Consequently, whatever issues that come up which disturb the relations between States must be subject to the authority of federal judiciary.

It may be esteemed the basis of the Union, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.

Since every citizen of the union is entitled to all the “privileges and immunities’ guaranteed under the Constitution, it follows that disputes between them should be resolved consistently by a single central authority so as to maintain them inviolably. Since a federal judiciary will not have any local constituents, it should be able act impartially in adjudicating issues between the different States and their citizens.

The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction.

Even the biggest advocates of States’ rights don’t deny the necessity of having the federal judiciary assume authority over all maritime issues. Consistent and predictable adjudication of maritime law is essential for nations to operate and deal with one another. Consequently, the national implications of this and their bearing on the public’s general welfare make any arguments in opposition moot. The Articles of Confederation themselves, for the most part are formulated with this in mind.

The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.

It should be obvious that the federal courts must resolve cases in which the States may be assumed to have conflicts of interest. Just as an individual should not be a judge in his own case, or in any case in which he has a stake or bias, so it applies to states. The principle may also apply in certain cases between citizens of the same State. Land grants in places where there are boundary disputes may fall into this category. The courts in neither State could be expected to be unbiased. Whether or not State laws “resolved” the issue (within their jurisdiction if not between jurisdictions), State judges would likely be partial to citizens of their own State.

Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.” This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend:

First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by “cases arising under the Constitution,” in contradiction from those “arising under the laws of the United States”? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole.

Having now established the responsibilities of the federal judiciary, listed above, we will now show which powers are to be vested in this department.

The first of these powers pertains to all cases “in law and equity” which are relevant to both the Constitution and the laws of the United States. The difference between the Constitution and laws of the United States has already been explained. The limitations placed on State legislatures are good examples. States being prohibited from printing their own paper money is a terrific example of this, when one examines all of the resulting strife that would occur if they were to do so in contradiction to the Constitution.

It has also been asked, what need of the word “equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day’s practice.

People may raise their eyebrows at the use of the term “equity” and ask what that has do with interpretation of either the Constitution or of United States law. Several of the States practice equitable rather than legal jurisdiction in certain cases. A court may look behind the strict legal interpretation of a contract if it is found to be unfair. In cases where unconscionable advantage is being taken of a party through either misfortune or chance, a court may decide to abrogate a perfectly legal contract. Such is the case when foreign parties are involved in either side of a dispute. Without judging according to equity as well as legality, federal judges would be impeded from rendering just decisions. The formal and technical distinction between LAW and EQUITY is not necessarily clear in every State. But in New York both forms of legal adjudication are in common practice.

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

The second power is related to treaties between the United States and foreign powers and cases dealing with representatives of the federal government such as ministers, ambassadors and councils. These may be classed under disputes between the states or between the United States and foreign nations since they have to do with national security.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

The third power is that over maritime and admiralty jurisdiction. These are classed under maritime disputes.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

The fourth power vested in the judiciary is that of adjudication over all cases in which the federal government is a party. This power is classed under disputes between individual citizens and the federal government.

Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last.

The fifth power is that over resolution of controversies between the States, between a State and citizens of another State; between citizens of different States. These are grouped under the disputes between the states or between the United States and foreign nations.

Sixth. To cases between the citizens of the same State, claiming lands under grants of different States. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State.

The sixth power is that of resolving cases between the citizens of the same State, claiming lands under grants of different States. These are classed as disputes where state courts are considered to be partial or biased. Cases of this provide the only instance in the new Constitution where the federal government is given authority to resolve disputes between the citizens of the same State.

Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.

Finally, the seventh power is the authority to decide cases cases between a State and the citizens thereof, and foreign States, citizens, or subjects. Obviously, these fall under the realm of Disputes between the states or between the United States and foreign nations.

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.

In conclusion, based on this review of the powers specified in the new Constitution for the federal judiciary, it appears that the judiciary has been appropriately structured and designed. If there are significant omissions, then it should be remembered that Congress has the authority to address them. No system is perfect, but a good one should not be maligned on the basis of a particular hypothetical defect that may be conjectured.



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