Sunday, May 4, 2014

Tara Ross: "This Week in History: Monroe’s birthday, Washington inaugurated, Rhode Island declares independence"

This is a writer to whom we ought pay more attention.


Tom Van Dyke said...

This piece about Federalist 81 is interesting

although I would think it's moot since the 14th incorporates just about everything in sight.

At about this time in 1788, Alexander Hamilton (a.k.a. Publius) was writing Federalist Paper No. 81. His essay would later appear in a bound volume with other Federalist essays (see below).
This paper honestly might leave you rolling your eyes a bit at the current state of affairs.
Hamilton is still discussing the judiciary and concerns about the Supreme Court. The Constitution’s opponents were worried that the Court would end up being superior to the legislature. Hamilton dismissed these arguments as “made up altogether of false reasoning upon misconceived fact.”
“[T]here is not a syllable in the plan under consideration,” Hamilton wrote, “which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution . . . .” Of course, he acknowledges, the “Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
Hmm. You have to wonder what Hamilton would say today. Would he be so blithe about expecting the Court to stay true to the text of the Constitution, steering clear of interpretations made “according to the spirit of the Constitution”? (How, exactly, does the “spirit” of the Constitution differ from the “penumbras” of the Constitution anyway?)
Hamilton theorized that perhaps some of the fear about the Court stemmed from the fact that it was a “distinct body of magistrates, instead of being one of the branches of the legislature.” The Convention did not create such a structure, of course, because it was striving for separation of powers. Hamilton defends the necessity of this separation: “From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them . . . .”
In sum, Hamilton believes that the “supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom.”


Bill Fortenberry said...

Another interesting fact about Rhode Island which should be considered is that they were also the first colony to recognize Charles II. Of course that was largely because John Clarke had already been in England for 10 years attempting to acquire a charter for Rhode Island from Oliver Cromwell.