Andrew Cohen Totally Misreads Federalist 78

Blogging at the Atlantic, Andrew Cohen, legal editor at CBS News, opines that opening the new Congress by reading the Constitution is pointless, and maybe even bad, because Congress was never intended to interpret the Constitution.  He rests his case on Alexander Hamilton's arguments about judicial independence in Federalist 78, which he quotes, in part:

It can 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.

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.

From this, Cohen extrapolates:

Writing as Publius, Hamilton goes on and on—he got paid by the word, didn't he? —but you get the gist. The Congress may be the first branch of government but it was never designed to have the last say. The tyranny of majority rule was just as much a concern to Hamilton and his compatriots as it ought to be today. The Constitution, like any other important document, must be read in context and with perspective. If it to be used as a sword, as House Republicans contemplate, it should also serve as a shield.

Though he doesn't come right out and say it, Cohen clearly takes the view that Congress has no duty or capacity to be attuned to the Constitution; that's the judiciary's job.  In other words, he's saying Congress should do what it wills and let the courts sort out what is and is not constitutional.

This is fundamentally wrong reading of Hamilton in two ways.

First, Hamilton's argument is not principally about the tyranny of the majority, it is about legislatures that fail to be responsive to the people. Hamilton is worried about legislatures substituting their will for the the will of the people.  The point of judicial independence and judicial review is not to protect the Constitution from the people, it is to protect the will of the people embodied in the Constitution from a legislature that has run amok.  Thus, elsewhere in Federalist 78, he writes:

Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.

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 authorise, but what they forbid.

Legislatures (and courts) act on authority delegated to them by the people through the Constitution.  When the legislature acts "contrary to the tenor of the commission" courts should consider the law invalid, not because the courts have some special ability to interpret the Constitution or some peculiar duty to apply it, but because all branches of government are equally bound by the Constitution.  If the Congress fails to respect the Constitution, the courts must still do their duty to the people by refusing to uphold the law.  Moreover, this conclusion, Hamilton writes, does not "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."  Hamilton doesn't want courts to stifle the people, he wants courts to ensure that the people's constitutional voice is not ignored by Congress.

Secondly, Hamilton does not make the claim that courts have a unique and exclusive right to interpret the Constitution.  In fact, Hamilton's argument is that courts also have the ability to interpret a written Constitution along with legislatures.  Reading Hamilton with the "context and perspective" he deserves, we should remember that American state legislatures had been laboring with and under written constitutions established on the authority of the people of each states since 1776 in some cases by the time the Federal constitution was proposed in 1787.  It was well understood that legislatures operated only under the authority granted to them by the people through the constitution and the those elected bodies that failed to heed this constitutional guidance might provoke electoral backlash, efforts to "alter or abolish" a constitution to be replaced by a new one, or outright rebellion.  Legislatures, therefore, had a concrete duty to act within the limits imposed on them by their constitutions.  This was not the open question in 1788, when Hamilton wrote Federalist 78 in 1788.  Rather, the question was: can courts also interpret and apply the Constitution?  After all, what right does an unelected judiciary have to tell a branch of government composed of the elected representatives of the people what is and is not constitutional?

This point was raised by the Antifederalist writer Brutus in his Essay XV:

Had the construction of the constitution been left with the legislature [rather than the courts], they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.

Hamilton's arguments in Federalist 78 should be thought of as a response to the concerns of Antifederalists like Brutus, who were doing a very good job of obstructing ratification of the Constitution by New York. (New York's convention ratified the Constitution in late July 1788 by a vote of only 30-27.  Ratification was achieved only once news arrived that Virginia had ratified the Constitution [also by a narrow margin] and Federalists had promised to support efforts to add a Bill of Rights to the Constitution during the first Congress.)  Hamilton is not telling us the courts get to be in charge of the Constitution.  That is, in fact, precisely the charge he is answering.  Instead, he is defending the structure of the Constitution which leaves open the possibility of judicial review, although it is nowhere expressly authorized.

Gordon Wood explains this point better than I could in a passage from an essay, "'Influence' in History," in The New York Review of Books from 1981:

The sovereign people... were not fully represented in any single institution of government.  They had many different agents to carry out many different tasks, including judges with the responsibility of upholding the fundamental law of the constitution.  thus judges, said Hamilton, were only acting as another sort of agent of the people, equal in popular authority to the legislative representatives of the people... However fully today we accept this view of judicial review, it was for eighteenth century Anglo-Americans a revolutionary doctrine, implying a wholly new way of seeing the people's relationship to government.

This point is reinforced by Hamilton in Federalist 81, where he discusses what to do about judges who trespass on legitimate uses of legislative authority:

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. 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. 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, and from its total incapacity to support its usurpations by force. 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. 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.

In essence, he brushes off critics who accuse the Constitution of giving courts too much power.  First, he points out that the elected branches of government may ignore and refuse to enforce improper judicial decisions since a court suffers a "total incapacity to support its usurpations by force."  Secondly, he notes Congress's "power of instituting impeachments," thus eliminating any "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."  Hamilton clearly saw Congress having an important role in interpreting and applying the Constitution, going so far as to argue that Congress might ignore and impeach judges who interfered with the legitimate exercise of its constitutional authority.

The bigger picture that links both of these preferable readings of Hamilton is the Madisonian view that the Constitution is a statement of popular will, a statement made by the sovereign people about the rules under which they want their government to operate.  While the structures of constitutional government (e.g. the separation of powers, checks and balances, federalism) are intended as safeguards against government exceeding its authority, these are merely backups against the principal bulwark against abusive government: the active expression of popular will. As, Madison writes in Federalist 51, "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."  Madison emphasizes the point in Federalist 49, writing, "The several departments being perfectly coordinate by the terms of their common commission, none of them... can pretend an exclusive or superior right of settling the boundaries between their respective powers... without an appeal to the people themselves."  Courts are part of the system of keeping government in place, but they are just a part.

Coming full circle, opening Congress by reading the Constitution is surely a symbolic gesture, but it is symbolic of precisely the right attitude about democratic government.  The Constitution is a statement made by us, the people, about the purposes for which we authorize government action and the rights and liberties against which the power we delegate to government may not trespass.  It is the essential statement of Congress's mandate to govern, and an institution rededicating itself to representing the will of the people can hardly do better than starting by reading the Constitution.