Like an approaching summer squall over the placid horizon, the confirmation hearings in the U.S. Senate loom large for Judge Brett Kavanaugh’s Supreme Court nomination. As a spirited dialogue — debate? — will likely envelop the Judiciary Committee’s public evaluation of his background and qualifications, Americans are likely to hear about competing theories of constitutional interpretation. There may be references to “original meaning,” “textualist,” and “living tradition,” among others. But if everyday Americans are lucky they will also hear references to “The Federalist Papers.”
The Federalist Papers are a series of 85 essays arguing in support of the U. S. Constitution, and how the then-new government would function. Seventy-seven of the essays appeared in New York newspapers between October 1787 and August 1788. The final 8 were added in later.
At the time of publication, however, they were written under the pseudonym of “Publius,” an homage to Publius Valerius Publicola, who was instrumental in the founding of the Roman Empire. The identities of its authors were revealed later to be Alexander Hamilton (the main force behind the project; later the first treasury secretary), John Jay (the first Chief Justice of the United States), and James Madison (the fourth president; traditionally afforded the accolade “Father of the Constitution”).
Arguably, the collection constitutes the most influential columns in American journalism.
The Federalist Papers act as a kind of liner notes to America’s foundational principles. As The Library of Congress more precisely says, they are considered “one of the most important sources for interpreting and understanding the original intent of the Constitution.” Accordingly, they are particularly relevant to all federal jurists. Especially those texts specifically relating to the judiciary.
On June 21, 1788, the Constitution became the official governing document of the United States of America when New Hampshire became the ninth of 13 states to ratify it. But even then, the Constitution was evolving (early “progressive originalism,” perhaps?). Madison later introduced 19 amendments to the Constitution. Ten of them, known as The Bill of Rights — which list specific prohibitions on governmental power — were ratified in December 1791.
The Federalist Papers leave a lasting legacy in development of modern western political thought. And, closer to home, they illuminate two important aspects of the American experiment: the sheer vulnerability of self-government; and what Oxford University’s Lawrence Goldman calls, “the counterpoint in the American mind between idealism and realism.”
Notably, throughout American history, the Supreme Court has incorporated The Federalist (the original name of the essays) into many of its opinions. A fact Kavanaugh surely knows.
Six essays (Federalist No. 78 (first published in May 1788) to Federalist No. 83 (first published in July 1788)) deal directly with the judiciary. Each was authored by Hamilton. And a number of them are germane to the American condition in 2018.
They may shed light on Kavanaugh. And vice versa.
“Federalist 78” opens the judiciary debate with this salvo: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”
Hamilton reasons that the Executive branch “holds the sword of the community” whereas the legislature “commands the purse.” The judiciary, “on the contrary, has no influence over either the sword or the purse.” Hamilton also thought then that the judiciary “the weakest of the three departments of power.” It would be fascinating to learn — given the sprawl of today’s judiciary, because of the massive growth of laws, statutes, and regulations of every kind — if Kavanaugh concurs with Hamilton.
In “Federalist 80” Hamilton reviews the particular powers of the federal judiciary. “It appears,” he writes, that these powers “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.” But Hamilton also understood that the system of checks and balances in the new government was not flawless. Far from it.
Should, what he called “partial inconveniences” appear in the judiciary, the prescribed remedies “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.” But such remedies may need a remedy today.
Considering today’s vast administrative state, where federal bureaucracies rule with few checks and balances, and Congress having delegated broad swaths of authority, Kavanaugh’s views on this issue would be timely and highly informative.
Where does Kavanaugh stand on these and other matters relating to the role of the judiciary as articulated in The Federalist Papers?
Eric Posner, Kirkland and Ellis Distinguished Service Professor of Law, University of Chicago, wrote recently that Kavanaugh has cited The Federalist Papers in his opinions “a few times.” But beyond that not much is known about his core judicial philosophy.
Some speculation about that may have been quieted by the judge’s remarks given at a 2011 George Washington University Roundtable. “The point being,” Kavanaugh said, “be careful about even The Federalist, I’d say, point of view. That’s not the authoritative interpretation of the words. You’ve got to be careful about some of the ratification debates. You’ve got to be careful about different people at the Convention itself. They had different views… So when there’s compromise, all the more reason for me to stick as close as you can to what the text says.”
Senators may consider those thoughts as they contemplate the upcoming hearings.