Happily, by the 29th column, Publius started defending particular passages of the proposed Constitution. Article I, sec. 8 grants to the federal Congress several explicit powers. Five subsections deal with armed forces: 8.12, 8.13, and 8.14 allow Congress to create an army and navy, and to make rules “for the government and regulation” of those forces. Section 8.15 allows Congress to “provide for calling forth the militia.” The difference between providing for such a calling forth and actually calling forth is an item we can discuss some other time. What the provision makes clear, though, is that whoever does the calling can do so “to execute the laws of the union, suppress insurrections and repel invasions.” Think Shays Rebellion. Or, more recently, Governor Wallace.
The first four subsections are not, though, the topic of Federalist 29. Rather, Hamilton responded in the column to anti-Federalists’ attacks on section 8.16, which grants to Congress the power:
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
Bad enough was the prospect of a standing army; but here, the federal government presumed to take control of the state-based militias. Hamilton’s response, in a nutshell, is: (1) a well trained militia – which it will be if the federal government controls the training – will be a good militia all the better at preventing federal tyranny; (2) the better and more efficient the militia, the less need for a standing army; and (3) the militia will still be true to the states, because the states appoint the officers. In the next post, I thought it would be fun to present F29 and my thoughts after reading it as an imagined dialog between the ill-disguised characters, Jeff and Alex.
The socio-political context, here, is interesting. The following passages, I think, give a sense of the mood between the war and ratification. It was good politics to celebrate the militia’s contribution to the war. But, it seems to me, most realistic folks knew the need for a regular, well trained army.
From John Ferling’s A Leap in the Dark, page 190:
At the end of 1775, during the siege of Boston, Washington had watched with horror as his army of short-term enlistees went home. He implored Congress to mandate longer enlistments, even for the duration of the war. Congress refused and also rejected pleas for using bounties to induce men to reenlist. Its actions stemmed from an abiding fear of standing armies. Many in Congress considered a standing army an “armed monster” and an “infernal machine.” Samuel Adams, in language reminiscent of that which he had used during the British occupation of Boston after 1768, declared that soldiers in a standing army “are apt to consider themselves in a Body distinct from the rest of the citizens.” To the end of the war he wished that the Continental army consisted of militiamen conscripted for brief tours of duty.
And this, from George Washington (grabbed off of wikipedia):
To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows…if I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole, I should subscribe to the latter.
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Jamelle Bouie, at The American Progress,
posted a while back on a
recent Report on the problems of judicial elections. Bouie emphasized two problems: (1) raising money for elections, and the pressure to be reelected might affect decisions; and (2) because judicial elections are not high-profile, voters are unable to make sound, informed decisions.
First, electing judges runs counter to the American idea of an independent judiciary; elections requiring fundraising, and it’s extremely difficult for a judge to appear impartial if — as a candidate — he must appeal to special interests and outside groups for cash and support. Moreover, appearance aside, fundraising influences judicial decisions; donors can pressure judges to support certain rulings in the same way that they pressure legislators to support certain legislation. …
But even if you could insulate elected judges from campaign pressures, you would still have to deal with the fact that judicial elections just aren’t that important to most voters. To most voters, judicial elections — even high profile elections for state Supreme Court seats — are a blip on the display, at least compared to congressional and presidential elections. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don’t have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and few barriers to bad behavior; as the study details, campaign donors can donate huge sums of money without attracting much attention from voters or officials.
In the end, the study’s authors look approvingly at growing support for public financing in judicial races, but a better solution would be to just remove state judiciaries from direct involvement in elections. The idea of elected judges is nice and Jacksonian, but it’s incompatible with our ideas about judicial fairness and independence. Either we stop electing judges, or we just accept the fact that elected judges will look out for their constituents as much as they will apply the law.
First, some counterpoints on the details. Regarding campaign money, it would certainly be a problem if a judge decided a case based on received or potential campaign contributions. However, if campaign financing is transparent, a case turning on campaign contributions should be easily overturned and, come the next election, that should be an easy issue for the opposing judge to run on. That may seem naive, but it is to point out that the risk of campaign contributions is not be a fundamental problem for elections.
Regarding voter knowledge, I don’t have any actual data on votor knowledge regarding judges, but my hunch is to agree that folks don’t research judge condidates nearly as much as they do the governors, state legislators, and federal candidates. However, I also strongly doubt that the same amount of voters do not base their votes for governors and Presidents on the judges that that official might appoint. At least with direct elections, the possibility exists that voters could research, and hold accountable, such judges directly. On the one hand, most folks blindly hand the decision to an executive that will, no doubt, appoint with some partisan slant. On the other hand, folks pull a lever for a judge based on the (D/R) next to the name or some other combination of factors resulting from the local electioneering.
More generally, I have long wrestled with the manner with which we place judges on the bench. North Carolina attempts to avoid some of the campaign cash-related problems with public financing for judicial elections. But, as the TAPPED post maintains, we should still ask whether it is better to have elected or appointed judges.
My gut reaction is usually to oppose judicial elections for the exact reasons pointed out by Ms. Bouie. But, there are some rubs to the alternative of appopinted judges.
To be appointed, the appointee needs to, in one way or another, have some ideological or political relation to the appointer. Sure, for high courts, a governor or President can pick from the legal all stars (though, of course there too, the appointer is looking for an idealogical fit). But imagine a governor choosing trial and appealate judges in a state without judicial elections. As my career fair judge suggested, that process is not occur in a pure judisprudential meritocracy. It is polical just as surely as elections.
The prime benefit to appointed judges is that, once appointed, the judge is presumably more free to rule based on the facts and the relevant laws without outside pressures of reelection, if his character is inclined to do so. I can think of two counterpoints to that: (1) A judge not facing reelection pressures can still decide cases based on factors other than facts and laws; it is, arguably, impossible to prevent a third factor, the judge’s ideological presumtions, from affecting the outcome. (2) There is nothing fundamentally making it impossible for voters to elect based on, and judges to run on, being good judges that rule based on facts, laws, and an intellectually honest judicial approach. If it were thus, elections would offset any problems associated with overly-politicized appointments and unhinged, ideological judges.
I’m still undecided; the point here is to flesh out the drawbacks of appointments because, like I said, that is what my gut prefers.
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