Never Mind the Constitution, the House Should Read the Federalist 78

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On this day of constitutional pomp and dubious circumstance, it is worth remembering that the benighted document the Republicans in the House of Representatives took the time to read Thursday was neither the beginning nor the end of the discussion in the 1780s (let alone today) about the separation of powers or the role of government in American life.

In a perfect world, following the recitation of the Constitution, House Republicans would have taken another hour or so to read, for example, The Federalist 78, Alexander Hamilton's trenchant 1788 exposition about the role of the judiciary in its interactions with the other branches. Written after the drafting of the Constitution n 1787, and before the introduction of the Bill of Rights in 1789, it seems eerily relevant today.

Hamilton, his day's most vocal tribune of federal power, made the case for judicial independence and for limitations on the power of the legislature and the executive. Of the judiciary we recognize today, he wrote: "In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." (Emphasis added.

Next, Hamilton addressed the very issue now being raised, explicitly or not, by the House Republicans' new emphasis on constitutional doctrine in the legislative process. He wrote:

"If 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."

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.

I understand that Justice Antonin Scalia will be discussing the separation of powers when he arrives on Capitol Hill in a few weeks for his ill-advised speech to the House's conservative caucus. He could do worse than start here in educating lawmakers about the limits they, too, have in our constitutional system. They may not want to hear it but maybe they'd truly learn something.


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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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