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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm feeling good, and I'm really excited a listeners today, we are concluding our discussion of the federalist papers.
N. Rodgers: Actually, we're not. We're concluding our discussion of the few that we picked. There are cillions more.
J. Aughenbaugh: Yes.
N. Rodgers: Federalist papers that could be read. We would encourage you to go read them all because they're all interesting and they're all interesting arguments back and forth. Don't just read the federalist papers. Also, read Brutus. Read the anti federalist papers.
J. Aughenbaugh: Yes.
N. Rodgers: I'm not sure. Think of themselves that way.
J. Aughenbaugh: Yes. As Nia indicated, listeners, we did cherry pick five of the most prominent or well known of the Federalist papers. Today's Federalist Paper is Number 78.
N. Rodgers: Writen by that guy from the musical?
J. Aughenbaugh: Yeah, that guy from the music. That's where I was going next. Some of you may only be aware of the author of Number 78 because he was the focus of a little known musical, Alexander Hambleton. But February 78, Nia, was responding to a particular criticism made by the antiferalist. If you have been listening to this series about the Federalist papers, we will know that we give ample coverage to the anti feralist if you will, critique.
N. Rodgers: In this instance, Brutus 9, excuse me, Brutus, 11 Brutus 12 and Brutus 15, and 11, 12, and 15 basically said, I don't know about this judiciary thing. I mean, they said it more eloquently than that. They were worried about things like it would replace the state court system. They were like, I don't know about this judiciary thing you're talking about. I hold your horses there.
J. Aughenbaugh: When you read those particular anti federalist papers, as Nia points out, they had an overall, if you will, concern with the federal judiciary that was written in the Proposed Constitution. Their concern was, how could you in a democracy have a branch of the federal government that had potentially a whole bunch of power, the power to overturn the will of the people via their elected representatives. But you can never hold these cats accountable for their behavior.
N. Rodgers: You can't boot them. You cannot, remember that we consider elections to be holding people accountable. Theoretically, in an election, you can lose. Now, that's rare for incumbents, but you can. If you do, that's the people saying, I'm not liking the way you're doing this. Well, with judges, there is none of that. You can say, I don't like you, Judge, and they can say, I find you in contempt. That's the end of that.
J. Aughenbaugh: I mean, so think about it, listeners. If you don't like a Supreme Court ruling or you don't like a bunch of them on a particular Supreme Court, it's not like in two, four, six years, you have an opportunity to vote.
N. Rodgers: To select them or pick somebody else.
J. Aughenbaugh: Listeners, what Nia is referring to is a fundamental element of John Locke's social contract. We give up some of our rights in nature, in exchange for good things like orders, stability, security, etc. But the provision, the qualification on what we've given up is we have regularly scheduled opportunities, to hold those in government positions who are supposed to provide these good things accountable. But we can't hold judges accountable. The anti federalists were like, Well, what democracy is this?
N. Rodgers: This is a Kakabimi democracy. This is not you know democracy.
J. Aughenbaugh: How's this any better, than what we experienced with, the British Crown during colonial times. Hambleton's response is in Federalist 78, where he attempts to explain the role of the judiciary in the proposed Constitution. He said the direct quote, and it's very well known, he said the federal judiciary would be the least dangerous branch of the federal government.
N. Rodgers: Hamilton, you got that so wrong.
J. Aughenbaugh: Well, but hold on let's first, unpack what Hamilton had to say, His His argument is the federal judiciary is not dangerous because it lacks implementation power. It doesn't have what he describes as the power of the purse or the power of the sword.
N. Rodgers: They have neither the money to establish something nor the army to back up what they say.
J. Aughenbaugh: Yes. In Hamilton's words, the federal courts have to rely upon the people's elected representatives to enforce their rulings. If the public and the elected officials don't like the rulings, it's not like the Supreme Court can then threaten them with money, or a paramilitary organization.
N. Rodgers: That I'm going to put you in jail. I mean, it only works because we all believe that it works. Meaning we all believe in the power of the judiciary and therefore, the power of the judiciary exists. The instant that the executive stops enforcing the power of the judiciary, then what does the judiciary do? They stand around and flail their arms. That's the worst it gets from them.
J. Aughenbaugh: Listeners, to give you an example of what Hamilton was suggesting, I want you to go ahead and think about the reaction to the Supreme Court's landmark decision in Brown versus Board of Education. Now One year after Brown was decided. Brown was decided in 1954. One year later, the court had to deal with the issue of how quickly should desegregation in public schools occur? How quickly. The court said with all deliberate speed, now, as we come to find out, many school districts, primarily in border and southern states, interpreted all deliberate speed as, hell, no. We're going to drag our feet.
N. Rodgers: We're going to take as long as we can get away with taking.
J. Aughenbaugh: That's right.
N. Rodgers: There were districts in North Carolina that did not desegregate until 1973.
J. Aughenbaugh: That's right.
N. Rodgers: I mean, that's almost 20 years, 18 years that they took. You get people like Governor Wallace saying, it's never going to happen. There's never going to be desegregation in Alabama.
J. Aughenbaugh: In Arkansas, in 1958, the governor there overturned a school districts desegregation plan, and it required President Eisenhower to send in the National Guard.
N. Rodgers: Little Rock, Little Rock 7. In Virginia, an entire county school system shut down.
J. Aughenbaugh: Shut down.
N. Rodgers: We're just not going to do it, and you can't make us.
J. Aughenbaugh: The state legislature gave school districts that choice. To Hamilton's point, hold on let me finish. What Hamilton was saying is the court's main power is its legitimacy. If it's viewed as illegitimate, it doesn't matter if it has the power of judicial review because government officials behavior could be reviewed and declared illegal or unconstitutional. But if they don't follow the ruling, then the court looks even more illegitimate. The court has to go ahead and pick and choose, when it says to an elected official your behavior is unconstitutional, and you must stop doing it. That's his argument,
N. Rodgers: His other argument stems from the idea of the permanency of the judiciary in terms of it not having term limits, means that it is less beholden to any one group of politicians, because it will serve out across, multiple groups of politicians, theoretically. I mean, theoretically, a judge is going to be on the bench, for more than one presidency, for more than one cycle of what we think of as the political pendulum where it swings from one party to another party to another because we rarely stay, completely on one side or another forever. He was saying that's why they needed to not be elected because they don't need to be beholden to the whims of the people in order to make their judicial decisions. They need to make judicial decisions independent of whether they're going to keep their job or not. Which is an election election is whether you keep your job or not.
J. Aughenbaugh: In listeners, what Nia is describing is what scholars refer to as judicial independence. Hambleton was basically telling those who were considering the new Constitution, we've picked this value. We've picked the value of judicial independence. Why? Because our experience in colonial times was that the king's courts frequently did the bidding of the king.
N. Rodgers: They always find for the state and never for the plaintiff.
J. Aughenbaugh: They were not neutral arbiters. They were not willing to make unpopular rulings against the crown. What we want with our judiciary is to be independent of what Nia just described, the political whims and whims, so that they can issue unpopular rulings. Again, listeners, I'm going to take you back to Brown versus Board.
N. Rodgers: Wildly unpopular in the South?
J. Aughenbaugh: Well, it was wildly unpopular in the entire country,.
N. Rodgers: That's true.
J. Aughenbaugh: But, I mean, public opinion in the United States was overwhelmingly against the court's ruling in Brown versus Board. Now, if you were a Supreme Court justice, how willing would you have been to vote to declare segregation unconstitutional if you knew you were up for reelection in two years?
N. Rodgers: I would not have been. If I wanted to keep my time shut. I would like to think that from ethical standpoint, that I would stand up for myself and do the right thing and. But when it comes down to, but I have to feed my family and pay my mortgage? Yes. I mean, what is it that they say that it's easier to convince a man to believe something when his paycheck depends on it? That's why we want judicial independence. What I do want to point out is that the executive supported that decision. They sent National Guard troops to various schools to protect the children on their way to school. I've read interviews with those young people, and it was extraordinarily hard for them to be the first kids of color to go into a white school because they were treated abominably. But Eisenhower said, I don't care whether you say yes or no. The Supreme Court has ruled that it's going to happen and it's going to happen. If we have to do it with military force it's going to happen.
J. Aughenbaugh: But I'm going to push back a little bit. Eisenhower didn't like the court's Brown versus Board decision, not because he was in favor of segregation. He didn't want to be pulled into the dispute, I mean, it wasn't like he was aggressive. No, he felt like he had to. But in contrast, the United States Congress not only didn't support Brown versus Board, there were multiple years in a row where articles of impeachment were drawn up to impeach Chief Justice Earl Warren. Simply because of Brown.
N. Rodgers: I'm not saying Eisenhower wanted to do it. Thank you for the clarification. I'm saying, though, that he felt an obligation to enforce what they had declared to be the law.
J. Aughenbaugh: I mean, Eisenhower could have just gone ahead and said, public school education is a state matter.
N. Rodgers: Not my problem.
J. Aughenbaugh: It's not my problem. Now, he didn't do it, okay? Kudos to him. But again, what we are describing listeners is, if you will, the essential tension that the federal judiciary presents in the American form of democracy. Because the anti-federalists were not wrong. You can't say that you're creating a democracy when one whole branch is unaccountable democratically. On the other hand, how do you preserve democratic, if you will, principles like minority rights, free speech, freedom of religion, checks and balances, without an independent judiciary, who can say to a president, even if the president is wildly popular? Sorry, Mr. President, Madam President, what you did was wrong. You need that independence. Hamilton's point was, we are consciously picking this value, judicial independence, even though.
N. Rodgers: Over all other values exist in this.
J. Aughenbaugh: Even though technically, theoretically, the institution is undemocratic. We know it's undemocratic, because of the selection process.
N. Rodgers: The arguments could be made about the selection process of the Supreme Court.
J. Aughenbaugh: But what's really interesting to me, Nia, is how much scholars complain about how the selection process of federal judges has become politicized. Well, I'm like, Well, I mean, hey, according to the anti-federalists, we need more politics in the selection process, not less.
N. Rodgers: Yeah, the anti-federalists were wrong on that part. But in part, the system, what I think it's important to remember about this fight over the Constitution and the building of the Constitution, is that they knew from the start it was imperfect. They knew from the start that there would be problems. But they assumed that people in good faith could work through those problems and come up with solutions. That's why they have an amendment process built in the Constitution is to say, we know that there will be things. What is it? I can't remember his name now, said the unknown unknowns.
J. Aughenbaugh: You're talking about the Secretary of what? Defense Caspar Weinberger. Yes.
N. Rodgers: No, I'm talking about the Bush era guy who was like, there will be no knowns, known unknowns, and unknown, known knowns. To the whole thing and wound himself around. But anyway, they knew there was going to be stuff they didn't know and that they couldn't prepare for. They built the system so that it could heal itself, fix itself, change itself, so that it could be a living document. I think that's also important, too, is that Hamilton knew that it wasn't going to be perfect. He was prepared for the imperfection of it, but he also was like, This is the best we can do with what we have.
J. Aughenbaugh: That would be Donald Rumsfeld.
N. Rodgers: Rumsfeld. Thank you. That's it. With a big speech and the whole.
J. Aughenbaugh: I mean, here's the other thing. Along those lines, Nia, to your point, along those lines, if we don't like the undemocratic nature of federal judges, there are plenty of states in the United States whose selection process of state judges is democratic.
N. Rodgers: Involves an election.
J. Aughenbaugh: But the downside is the appearance that we are picking judges who are beholden to those who either supported their campaigns or who voted for them. Again, as I tell my students, it's a trade-off.
N. Rodgers: If you're going to have elections, you have to have really strong recusal rules. You can't.
J. Aughenbaugh: I don't even go there. I just say to my students, Which do you prefer? Do you prefer your government officials, all of them to be accountable to the public, or do you value judicial independence, versus those democratic principles, I leave it for them to leave it to them to decide. Now, do I think that Hamilton overestimated the weakness of the federal judiciary? Sure. I mean, let's face it, Nia.
J. Aughenbaugh: Every constitutional dispute of any significance. Yeah, we wait for the Supreme Court to tell us how to interpret, words that on the paper, , a bunch of us together could go ahead and say, No, we agree it means this, but we wait for the Supreme Court to tell us. Supreme Court rulings change. I mean, Brown versus Board is a really good example of this. 60 years earlier, segregation was declared constitutional.
N. Rodgers: The out, right?
J. Aughenbaugh: No, Pussy versus Ferguson.
N. Rodgers: Thank you.
J. Aughenbaugh: But nevertheless, the words didn't change.
N. Rodgers: Right.
J. Aughenbaugh: The country did.
N. Rodgers: Advancing as a nation or changing as a nation. I'm looking at the words. Another thing too is, remember that for listeners, a thing to remember is the Constitution says nothing. Nothing is completely silent about judicial review. That is a concept we don't see until Marbury. Like, we don't see that until 1803, where John Marshall's like, hang on. We have judicial review. Like, that's a thing.
J. Aughenbaugh: But what's really interesting, Nia, it's not in the US Constitution, Farr 78 Hamilton actually says, he assumes that the federal courts will engage in judicial review. I'm like, Whoa. I mean, if you're an anti-federalist, you're like, Hey, wait a minute, here. Who has judicial review? State courts do. If you thought the federal courts should have it, why is it not in the document?
N. Rodgers: Why didn't you write it down? If you thought it was such a great idea, why didn't you write it down?
J. Aughenbaugh: But we also know that at the Constitutional Convention, very little time was spent on the federal judiciary.
N. Rodgers: I was totally an afterthought. It's like late in the afternoon. I'm tired. I want to go take a nap. Let's just dash out this third article and be done with.
J. Aughenbaugh: I mean, we've been in Philadelphia all damn summer. I want to go home.
N. Rodgers: I see my wife and kids. I haven't slept in my bed. I haven't.
J. Aughenbaugh: I don't know what they've done to my farm.
N. Rodgers: I'm probably going home to shambles. It was not cool. In Philadelphia. Now summer. It's not like they were in an air conditioner.
J. Aughenbaugh: In plush office chairs, with a nice oak desk.
N. Rodgers: I imagine that there were many times when they just wanted to murder each other and be done with it. Like, I don't even care what comes out of this. I just want it to be over.
J. Aughenbaugh: I mean, listeners, think about, for instance, how when you engage in a disagreement or an argument with people who you dearly love. But then you go ahead and add heat, summer heat, stifling summer heat with no air conditioning. Things are not going to add.
N. Rodgers: Your argument, and then think about setting it in a camping situation. Is that going to get better? I don't think so.
J. Aughenbaugh: But listeners, bottom line here, Nia and I, one of the reasons why we did this series on the Federalist Papers, is that the Federalist Papers were a collection of explanations, but it's one side of a conversation. We encourage you to take a look at the other side. Because as we've acknowledged in this series. Whether it was Federalist 78 or 51 or 10, whatever the case may be. Hamilton, Madison.? They projected how the Constitution would work, but did they always get it right? No. Did the anti-federalists have some really good points? Hell, yes.
N. Rodgers: They still do. I mean, the wonderful thing about this to me is that this argument continues to today. If you get two political scientists in a room and you say, federalists, anti-federalists go, you will get approximately what? 50, 60 opinions out of those two, my goodness, yes. Political scientists. Well, if you look at it from this point, but if you look at it from this point, but if you look it's a work in progress, just like the Congress, excuse me, the Constitution is a work in progress. The whole point was, we have to try to figure out. Think about where they're coming from. There was nothing like this before this. There was no template to go by. They were flying blind, this idea.
J. Aughenbaugh: This idea that the people could go ahead and write a governing document to govern themselves.
N. Rodgers: What are you thinking?
J. Aughenbaugh: I mean, because, again, listeners.
N. Rodgers: The closest you come to that is the Magna Carta, I would think.
J. Aughenbaugh: Then during the colonial era, part of why a number of British kings did not respond well to the colonies, complaining, moaning, groaning, was as far as kings were concerned, they had the divine right to rule. You were supposed to be responsive to.
N. Rodgers: That's what monarchy means.
J. Aughenbaugh: To the king or queen because they were above you. Well, the Constitution basically assumes that the leaders are beholden to the public.
N. Rodgers: There's a contract between the people and the leaders. On both sides. It's not one-sided. We're not serfs to their nobility. We are equals.
J. Aughenbaugh: That's right. You owe us your position of authority.
N. Rodgers: We owe you honest advice and honest counsel.
J. Aughenbaugh: We will be compliant because we have chosen you to utilize the powers of your office. But if you give us reason not, to be compliant, then we're going to [inaudible], then we'll vote your, ass excuse me, vote you out of office. I had a slip-up there. Sorry, listeners. I apologize for the profanity. Okay. But nevertheless.
N. Rodgers: But yeah, we will boot you. You'll be finding another job because you won't be in this job anymore.
J. Aughenbaugh: Yeah, dust off your resume, update it.
N. Rodgers: That public service contract goes to all, I think, public servants. There's the idea of I will be in compliance so long as you are acting in good faith. When you stop acting in good faith, so will I. We will have, then, whatever conflict comes after that. But we suggest that you read these because none of them are very long. When taken together, they are a fascinating look at people wrestling with enormous questions of fairness and how we should govern ourselves and how we should govern each other. What do those things mean? They're really an interesting set of documents.
N. Rodgers: If you get a chance, grab a book from a library. There's always a library plug-in there somewhere. They're almost all online. There's also ways to read them that are open access. Thank you so much, Aughie. I appreciate us doing this series. These are questions we still wrestle with, which tells me that even though they were very smart, they weren't this prescient. I see all the future, all the answers, kind of, guys.
J. Aughenbaugh: I am a big advocate that each successive generation should want to meaningfully participate in a dialogue on what these words mean and what do we value. The next time you disagree with the Supreme Court ruling, remember, our ancestors value judicial independence. If we don't, then perhaps we should amend the Constitution. But do understand the downside, but I welcome this. This was one of my favorite series that we've done, and I appreciate the opportunity. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.