Federalist 82 and 83, On the Relationship between Federal and State Courts
Hamilton continues reviewing the Judiciary and goes into greater depth on the issue of the relative jurisdictions of the Federal and State courts. Remember that one of the key objections to the proposed constitution was that it would infringe on the sovereignty of the individual states. Once again, the Federalist Papers can best be thought of as a series of Op Eds, which were published throughout the thirteen states, and were designed to encourage the approval of the Constitution. Having recently fought a bloody conflict to free themselves from the tyranny of Britain’s King George, the citizens were in no mood to trade one tyrant for another that just happened to be closer. Specifically for the purposes of this paper, the States had no desire to cede their Judicial authority to the Federal government.
The Tenth Amendment to this proposed document represents the thinking of the time. It specifically stated that the only Federal jurisdiction that existed was for those powers expressly delegated to it by the Constitution. Every other power was categorically reserved to either the States, or the people themselves. Hamilton re-states this principle here saying that “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head”.[1] There are several reasonable circumstances where the State courts might lose their jurisdiction. They include things like; the granting of a particular authority to the federal system under the Constitution, where a particular action is prohibited to the states, or an occasion where retaining the power in the states is incompatible with a Republic (think of things like international treaty obligations). With these few exceptions “State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.”
The proposed document states that “The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the congress shall from time to time ordain and establish”. Hamilton interprets this to mean that “inferior” courts include those in the individual States, and have concurrent authority with the Federal courts unless the matter before them is a result of language in the proposed constitution and therefore not in their jurisdiction. Since the change in authority that comes from the new Constitution would be new, it does not, by definition, infringe on the existing authority of the state courts. They would retain their jurisdiction in all cases “in which they were not expressly excluded by the future acts of the national legislature”. This threat was minimal as the scope of the Federal government was designed to be minimal. As the scope of the Federal government has expanded, so has the jurisdiction of the Federal courts.
In the “instances of concurrent jurisdiction” Hamilton tells us that we should look at the system as a single entity, because the State courts are “natural auxiliaries to the execution of the laws of the Union”, not separate from those same laws.
Federalist 83 reviews the subject of why the proposed constitution is silent on the topic of jury trials. This has been discussed before and while Hamilton goes into much greater depth on the subject in this paper, I will just summarize the discussion here.
Remember that there were objections to the structure of the Judiciary because some people believed the draft constitution’s silence on jury trials to be a sign that they would be abolished by the new constitution. Specifically, jury trials were mentioned in criminal cases but not in civil cases. There were objections on the grounds that to list was to exclude. Meaning, listing criminal cases as having juries but saying nothing of civil cases, implied exclusion in that instance. Hamilton states that, since the proposed constitution is silent on the matter, it is left to the legislature to determine which, if any, civil cases will require a jury. But there is no doubt that the Founders preferred to have jury trials. Says Hamilton, “The strongest argument in its favor is, that it is a security against corruption.” It would be more difficult to tamper with all the members of a court, the magistrate, jury, clerks, and prosecutors, than it would be to influence a magistrate. And finally, Hamilton once again uses the constitutions of the various states as evidence against his detractors pointing out that “it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision” for civil trials by jury. That the proposed constitution also omits that provision does not mean that they are to be prohibited.
All quotes are from https://guides.loc.gov/federalist-papers/text-81-85
To read all of John Parillo’s work on the Federalist Papers, check here.
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