With renewed debate over who should fill a vacancy on the United States Supreme Court, a letter to the editor in an east coast newspaper stands out. Written by a Wall Street lawyer who was also an Army officer, it makes some excellent points.
First, he reminds us what role judges play in a free society. Unlike the executive and legislative branches of government, he writes, the judiciary is “always the least dangerous to the political rights of the Constitution,” because whereas the executive “holds the sword of the community” and the legislature “commands the purse” and also “prescribes the rules by which the duties and rights of every citizen are to be regulated,” judges exercise no such power. As he puts it, the judiciary has “neither force nor will, but merely judgment.”
That tripartite division of government is at least as old as Saint Thomas Aquinas. In his Summa theologiae, I-II, 105, 1, c, Aquinas wrote that “the best polity” is one which is “formed by a good mixture of kingship, in the sense that one person is the chief, and aristocracy, in the sense that many men rule according to virtue, and democracy, . . . in the sense that leaders can be elected from among the populace, and further, that the choice of the ruler belongs to the people.”
As he often did, Aquinas drew upon Aristotle, in this case the Politics. From ancient Greek philosophy Aquinas learned that the soul also has three parts, intellect, will, desire, corresponding to kingship, aristocracy, democracy. Guiding those parts of the soul, as it does a well-ordered government, is virtue.
Although ancient philosophers knew that the human interior is askew, they could not explain exactly why humanity was less perfect than it had been during a distant Golden Age. Aquinas and our battle-hardened Wall Street lawyer share the Judaeo-Christian belief that human nature is flawed from a first Fall, an Original Sin.
When our Wall Street letter writer argues that judges must serve for life, lest they be swayed by passing political fancies as they frequently seek re-election or re-appointment, he also notes that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”
Probably with memories of his own days studying law, he writes that from “the variety of controversies which grow out of the folly and wickedness of mankind . . . the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.”
That special knowledge, he writes, limits the number of people cut out to serve in the judiciary. “Hence it is,” he concludes, “that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges,” and “making the proper deductions for the ordinary depravity of human nature, the number must still be smaller of those who unite the requisite integrity with the requisite knowledge.”
If one is wondering who writes this way any more in a letter to a newspaper, the cat must be let out of the bag: The author was Alexander Hamilton, and the letter was Number 78 of The Federalist Papers, first published in 1788. He was then around thirty-two, and it amusing to consider that by even twice that age none of us will have written anything as useful or enduring.
Ancient, medieval, and eighteenth-century theorists put emphasis on virtue because it is so scarce. Like gold panned from gravel, it needs to be worked into shape. Discipline in virtue takes several forms; for Christians like Aquinas and Hamilton, virtue has seven components: first, from antiquity, prudence, temperance, justice, and courage; then from Christianity, faith, hope, and charity.
For Hamilton, any kind of knowledge combining with integrity rarely occurred in the same person. Son of an unwed mother, teenage immigrant from one British colony to another (Nevis to New York), survivor of combat military and political, he had seen a lot of bad behavior. While he did not use that “ordinary depravity of human nature” as an excuse to wallow in self-pity or stay remote from virtue, he was aware of his own failings and knew that not everyone was like his hero, George Washington.
Certainly within the three branches of government, Washingtons would be few and far between. A search for a good judge, for example, must make “the proper deductions” for standard human depravity, and yet find someone who will be bound by legal precedent and thus be “least dangerous to the political rights of the Constitution.”
Along with James Madison and John Jay, Hamilton wrote The Federalist to persuade people to vote for the new Constitution. Under the name Publius, they wrote to encourage their fellow Federalists and to engage Anti-Federalists, people skeptical of the proposed Constitution. Those skeptics foresaw a time when judges became “dangerous to the political rights of the Constitution,” when legislators prescribed rules to curtail the rights and compel the duties of citizens, when the executive wielded its sword against the community. Why support a new Constitution, asked skeptics in 1788, if human depravity could metamorphose the new government into an enemy of the people?
Skeptics especially feared a national standing army, but Hamilton, in Federalist 29, assured them that the people would have nothing to fear were governmental force and will to break free from the restraints of virtue. “That army can never be formidable to the liberties of the people,” wrote Hamilton, “while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
As Larry Schweikart and Michael Allen observed in A Patriot’s History of the United States (2004), “The Federalists . . . brilliantly sidestepped the question of state-versus-federal sovereignty by arguing that the Constitution made the people sovereign, not the state or federal government.” Popular sovereignty, Hamilton promised, survives when free people bear arms.