restricted access Conclusion: The Federalist
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206 Alexander Hamilton’s influence permeates American constitutionalism, beginning with the first part of his lasting, legal legacy: his dedicated use of inherited and selectively applied English legal tools to create a strong executive and an authoritative federal judiciary fit for a constitutional republic. To Hamilton, the most important tool in that toolbox was concurrent constitutionalism , as adapted for the American federal system. Concurrence had multiple dimensions. Hamilton created and encouraged one form, a functional concurrence between executive and judicial functions, whereby executive officers properly exercised some judgelike discretion and judges operated as administrators. This federal magistracy of cooperating judges and executive officials blurred the boundaries of any strict separation of governmental powers in the early republic. In doing this, Hamilton’s magisterial model borrowed directly from the centuries-old British constitution. More profoundly, concurrence had a lasting impact on the jurisprudence of federal–state relations under the US Constitution. This federal form of concurrence, as articulated by Hamilton in Federalist Nos. 32 and 82, provided guidelines for dividing and delegating sovereignty between the national and state levels of government. While early national jurists were quick to adopt Hamilton’s guidelines, Hamilton also put this form of concurrent The Federalist conclusion x The Federalist 207 constitutionalism into practice in federal admiralty court, through marine insurance litigation, through arguments in favor of strong federal taxing and borrowing powers, and through equitable trusts and mortgage law. Finally , despite the enhanced authority vested in the newly minted national government, Hamilton demonstrated that the federal system, and especially the still-vibrant state courts, would help to preserve Americans’ liberty and common law rights. It is fitting, then, that the author of The Federalist essays on concurrence , federal court jurisdiction, and executive functions helped to augment the power and relevance of the federal magistracy while maintaining the states’ authority in practice. While Hamilton’s constitutional arguments echo loudly through decisions of the US Supreme Court, he did the most to enhance the scope of federal judicial power within the district and circuit courts, particularly by fostering a close working relationship between his energetic Treasury Department and district judges. Working alongside Hamilton and his team of customs collectors, these federal magistrates sorted out the day-to-day business of governing by resolving the practical details of everyday administration and by executing the letter and spirit of congressional statutes. Even though scholars have emphasized the treasury secretary’s various reports on economic policy as his decisive contribution to the economic successes of the 1790s, in practice, Hamilton’s true policy genius was to build a close working relationship with the network of administrators and judges who managed and adjudicated the commercial republic. These executive and judicial officials ensured the success of the nation’s economic interests by overseeing the collection of revenue taxes, the remission of penalties, and the prosecution of those who violated customs and neutrality statutes. For Secretary Hamilton, abstract policy recommendations and statutory law could only go so far toward building his vision of a thriving commercial republic . It fell to those who executed that policy—the combined personnel of the federal magistracy—to ensure a delicate balance among the conflicting goals of fostering trade, collecting taxes, and enforcing revenue statutes. In this way, the development and growth of both federal judicial and executive powers were inextricably linked in the early national period. Throughout the early republic, the combined efforts of many individuals who usually go unrecognized in American history—state and federal judges, teams of administrators, and lawyers from across the states—greatly expanded federal judicial power. This development in law occurred from the concerted efforts of key actors, like Hamilton, as well as from the jurists’ 208 conclusion wide-ranging, uncoordinated efforts to reconcile inherited English precedents and newly minted American law with pressing political circumstances. As described above, federal court authority developed from within—from the accommodating magisterial relationship forged among the network of district court judges and administrators who exercised mixtures of executive and judicial powers. Congress also aided the growth of federal judicial authority by granting the US Supreme Court its writ of error review of state supreme court decisions (through section 25 of the 1789 Judiciary Act).1 Hamilton was the first legal strategist to use this review process strategically ; he used it to simultaneously defend his customs collectors and protect the Treasury’s (Hamilton’s) interpretation of federal revenue laws. External political circumstances also hastened the expansion of federal court jurisdiction. Although...