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The Federalist Papers #22 C: Pillars of Democracy—The Judicial System, Military Loyal to the Constitution, and Police Loyal to the Constitution

Summary:
Recent events make it worth thinking about what it is that can keep our nation’s government from being overthrown. I want to point to two key elements. First, judges whose partisanship is tempered by caring about the law and the respect for the judicial system that leads many powerful people outside the judicial system to take decisions of the Supreme Court as final. Second, a powerful military loyal to the Constitution, including the role of the Supreme Court in that Constitution. Going beyond simply avoiding the overthrow of the government, in achieving social justice, a third element is key: police loyal to the Constitution—especially the 14th

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The Federalist Papers #22 C: Pillars of Democracy—The Judicial System, Military Loyal to the Constitution, and Police Loyal to the Constitution

Recent events make it worth thinking about what it is that can keep our nation’s government from being overthrown. I want to point to two key elements. First, judges whose partisanship is tempered by caring about the law and the respect for the judicial system that leads many powerful people outside the judicial system to take decisions of the Supreme Court as final. Second, a powerful military loyal to the Constitution, including the role of the Supreme Court in that Constitution.

Going beyond simply avoiding the overthrow of the government, in achieving social justice, a third element is key: police loyal to the Constitution—especially the 14th amendment that makes all equal before the law, regardless of race and other caste markers.

On judges, let me make an analogy. Unlike some, I am not worried about a resurgence of inflation in the United States (and have similar views for many other rich countries) because I know how the economists who staff the Fed are trained. They are all taught about the Great Inflation of the 1970s and how overly stimulative monetary policy caused that Great Inflation. Similarly, I believe that legal training instills a respect for the law that, for a large majority of judges, significantly influences their decisions away from being 100% partisan. Indeed, I believe that the law—the letter of the law and precedents—has at least as big an effect on judges as considerations of the good of the nation (beyond partisan ideology) has on voters.

On the military, I am very grateful that military training puts loyalty to the Constitution ahead of loyalty to the Commander in Chief. The words “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic” come first, before mention of the President of the United States as Commander in Chief to be obeyed. Under some circumstances, the President of the United States could come within the set of “all enemies, foreign and domestic,” especially at moments of time close to a constitutionally ordained transfer of power. (See “John Locke: If Rebellion is a Sin, It is a Sin Committed Most Often by Those in Power.”)

On the police, I think we fall short in inculcating into them loyalty to the constitution. In particular, in order to carry out the promise of the 14th amendment which made all equal before the law, regardless of race, everything should be done to hire a police force composed of individual significantly less racist than the general population. I don’t think we have achieved this.

Rather than defund the police, I think we should spend more on one specific item: requiring all new hires to the police force to have bachelor’s degrees from rounded curricula at colleges and universities. (For adequate recruiting, I assume this will require somewhat higher average pay for those new hires.) Both sides of the partisan divide seem to agree that colleges and universities have some effect in getting students to try to be more politically correct. In the extreme, there may be some professions for which that is bad training (as when political correctness causes people to distort the truth of social-science findings). But I want the police to be a lot more politically correct than they have been, on average.

I don’t know the percentages, but I suspect that most police forces have at least a substantial minority of officers who have bachelor’s degrees already, so the danger of police forces giving the new, all college educated recruits too hard a time.

The bottom line is that we need to even more than we have in the past to inculcate loyalty to the constitution in those who get legal training, in our military, and in our police. That includes especially (since this seems to be difficult) to the 14th amendment, whose words I find inspiring:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Judges should be—and to an important extent, are in the real world—like priests of the Constitution. Without the judicial system and the respect it is afforded, the Constitution would be in grave danger of being merely words on paper, ignored whenever convenient. Alexander Hamilton made this point in the last five paragraphs of the Federalist Papers #22. In the last two paragraphs, he also points to two other great strengths of the then proposed constitution: first, that it had checks and balances in its structure, and second, that through ratification by a vote of the people it would have a clear supremacy over state governments.

Notice that the spirit of what Alexander Hamilton says about the importance of ratification by the people really goes well beyond ratification: it is of great importance that even in times of great stress, a large majority of people in the United States feels a deep loyalty to the constitution. And it is especially important that those given the heavy guns or the great power that police wield have a deep loyalty to the constitution.

Below is the full text of the last five paragraphs of the Federalist Papers #22:

A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?

In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters.

The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.

It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

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Links to my other posts on The Federalist Papers so far:

Miles Kimball
Miles Kimball is Professor of Economics and Survey Research at the University of Michigan. Politically, Miles is an independent who grew up in an apolitical family. He holds many strong opinions—open to revision in response to cogent arguments—that do not line up neatly with either the Republican or Democratic Party.

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