One lonely night while pondering upon our great American democracy, I decided, at the behest of my GPA, to read a portion of the Federalist and Antifederalist Papers. Rather than defaulting the authors for their rather dry, dispassionate arguments – carried out line by line, point by point – my anthropological senses were instead tickled.
Questions begin to fill my mind, most of them shallow and useless (How did these Americans brush their teeth? Did they brush their teeth? I really hope they had teeth.), but at least one of them made it to a deeper level of cognition. The idea that the systems that are today, simply didn’t exist 230 years ago is conceptually exciting. Processes of governmental success had to be imagined and researched and debated on. These Federalists and Antifederalists had to create something that had never existed before and, as such, their possibilities were limitless – a fascinating time period for educated, white, property-owning, Protestant Americans.
And, for the most part, the arguments that I ran across were logical and, at times, prophetic – hinting at a future of judicial review, the very backbone of today’s Court. However, one claim, made by Alexander Hamilton in #78, stands out against the rest, striking me as disingenuous and even a bit manipulative. He held the position that the judiciary “… will always be the least dangerous to the political rights of the constitution” as it lacks both “the sword or the purse.”
This revelation leaves me almost speechless. I mean, our modern day court system is arguably the most powerful branch of U.S. government, and is definitely the most powerful judicial system when compared to the rest of the world. I am further baffled by Hamilton’s claim, “… that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter…” This is an alluring utilitarian argument, that the lives of the many are more valuable than the one; however, what if you are that one? The least powerful branch has ordered the deaths of many American citizens, the power to take life within its jurisdiction. Individually based oppression or not, this is a tremendous position to hold, and astutely captured Amy Elkins in her gallery, “Parting Words”, in which she photographs death row prisoners along with their last words.
Whether or not capital punishment should exist, there is no denying the power of the bench. And the thing of it is, Hamilton, as well as the other Federalists, foresaw this power, implicitly hinting at its future. Nevertheless, he knew that his constitutional rivals would have a none of it, repulsed as they were against centralized power. I am therefore thoroughly convinced that Hamilton purposefully misconstrued his argument in order to manipulate the Antifeds into signing (weird, right? A manipulative politician?). As history tells it, the Federalists won their war, and the least powerful branch has proven itself as an effective policy maker – for better or for worse.