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Sunday, November 23, 2014

Importance of "Ordinary magistracy"

In Federalist 27 I find the term "Ordinary Magistry" employed at the end of his paper:

"The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws." [Federalist 27]

This goes back to the question raised in my earlier post of whether the Federalist system was ever envisioned to be two separate governments or not. Clearly Hamilton thought not. he saw a fundamental principle of Federalism as being collaboration and the use of "ordinary magistracy" ("ordinary courts" is the term I hear from English legal experts). I don't think that Hamilton at least envisioned two separate court systems but rather a unified court system. As realistic as he was I don't think he'd have been surprised by what has actually happened but I think that all the founders would be dismayed, because there are huge benefits to collaboration and a need for a unified government that outweigh any supposed benefits from competition and rivalry:

Collaborative Government

"It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union."[Federalist 27]

In the Federal vision that we see here, it seems Hamilton at least, hoped that Federal Judges would also be State Judges and that State Judges would be able to weigh in on Federal Law. In this vision, only the clearly Federal only courts such as the Supreme Court and Federal Appellate courts would have been in separate bodies and functionally the court system would have been an integrated whole. In principle the courts were to be collaborative.

Integrated Government

It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws."[Federalist 27]

Now we know from history that elements of his vision ended up being in contravention to the vision of the early Republicans (Democratic-Republicans but often just plain Republicans). But these arguments were about the scope of Federal Power not this concept.

That the courts have evolved the way they did, originally could be excused by the vast distances between localities and central locations, and conflicts between State Law and Federal Law that reflected different interpretations of what the "enumerated and legitimate" objects of each should be. I don't believe however, that Hamilton's vision was too idealistic or radical not to inform our own times. I think he saw "constitutional" as being about the organization needed for good government and never expected it would be so hard to amend the constitution to keep the government well constituted. With a well constituted government one can pretty much agree:

Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. " [Federalist 27]

I believe that one of the constitutional issues of our own time. Not from the perspective of being "unconstitutional" in the sense of the parsed and political interpretation of our current SCOTUS, but poorly constituted in the sense of our myriads of courts and local governments each with overlapping, duplicated, conflictive, and sometimes arbitrary laws, sometimes perched to prey on travellers, and sometimes set to exploit the peccadilloes of their own ordinary citizens. I think we need to reconstitute our court system to reflect this original vision. And also to once again separate "Judge, jury and executioner" and restore the role of "ordinary courts", "ordinary process" and citizens in their appropriate Judicial roles. Our current system, where it is illegal in some states to marry, smoke pot, or vote, in some states and legal in others, is crazy as much due to drift from the vision described here as from any deliberate insanity. Judges are professional Jurors who know the law well enough that they should be able to act as jurors about it's constitutionality and appropriateness in concert with legislature, executive and ordinary people-jurors. That is where we should be setting up processes for better adjudicating issues.

In this post I'm wearing my student hat.

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