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3: “An erroneous opinion…”

November 19, 2012

3: “An erroneous opinion…”[1]

The Federalist 3: The Same Subject Continued. First published November 3, 1787. Author John Jay. Please see Introducing the American Bible for an introduction to this project.

It is likely that Publius has no living reader as influential—and few as devoted—as Justice Antonin Scalia. Scalia is known as the leading advocate of originalism, the doctrine that interpreting the Constitution requires considering the intent of the Constitution’s authors.

Asked earlier this year why he is “so convinced these guys [from] over 200 years ago were right”, Scalia answered with praise for Publius (and a dig at modern politicians):

You have to read the Federalist Papers to answer that question. I don’t think anybody in the current Congress could write even one of those numbers. These men were very, very thoughtful. [2]

Scalia’s commitment to originalism sometimes leads him to take unpopular stands, in ways that attempt to move American law away from what Scalia sees as unconstitutional innovations. For one example, take his decision this year in the explosively controversial Arizona v. United States.

This case considered the legality of an Arizona law intended to crack down on unauthorized immigration. The law, SB 1070, was intended to make life in Arizona so unpleasant for unauthorized immigrants that they would leave on their own—a policy the bill’s own preface refers to as “attrition through enforcement”.

The Obama administration announced it would sue Arizona to prevent the law from going into effect. Unexpectedly, however, it did not do so on civil rights grounds. Instead, Obama’s lawyers argued that Arizona’s decision to implement its own immigration policy interfered with national immigration policy. Immigration is a national matter, they said, and Arizona could not “preempt” federal law.

In a 5–3 decision, the Supreme Court sided with the Obama administration. Justice Anthony Kennedy wrote that the federal government has “broad, undoubted power over immigration” which allows Congress to “preempt state law”.

Justice Scalia, however, disagreed. In a characteristically incisive phrase, he wrote that if the writers of the Constitution could have known such a ruling was coming, the “delegates to the Grand Convention would have rushed to the exits.”

Yet Scalia’s strong dissent sits uneasily with the actual words of the Federalist. In Federalist 3, John Jay argues that a strong union is a necessity so that American foreign policy can be unified. Jay wrote from experience. As an ambassador in Europe, Jay had been critical in negotiating peace with England. Afterward, he served as America’s second Secretary of Foreign Affairs under the Articles of Confederation.

Jay became a frustrated critic of the Articles, writing elsewhere that the authors of the Articles created a government “fit to give advice, […] yet destitute of power, and so constructed as to be very unfit to be trusted with it.” Biographers of Jay suggest that this frustration was a direct result of his own frustration at the limits of his office.

As a result, Federalist 3 praises the national government’s preeminence in foreign policy. States, Jay, considers, are prone to “temptations” to “swerve from good faith and justice”. Because a state is so small, and so easily dominated by a single governing party, its local politics are prey to all sorts of extremes. This may be fine for domestic politics, but Jay suggests that foreign policy requires a steadier hand.

National government provides that steady hand. Insulated from the passions of the people, foreign policy experts (like, presumably, John Jay) would be able to present a unified front to the world. In an age of European empire, with the Revolutionary War only just concluded, Jay saw that unified front as America’s lifeline.

Jay’s argument is sound—and born of personal experience. Jay’s opposition to the Articles came from having his own wings clipped. Although he would later decline Washington’s offer of Secretary of State, it’s nonetheless likely Jay was considering his own political future as well as the country’s fortunes.

Given its self-interested nature, then, perhaps Justice Scalia was right to ignore Federalist 3’s argument. Or perhaps he ought to recall that Publius, like all men ancient and modern, worked from a mixture of idealism, practicality, and selfishness. In that light, perhaps The Federalist and its contemporaries ought to count as just one more avenue to understanding the Constitution, rather than an infallible guide.


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  1. The observant reader will note the subtle pun.  ↩

  2. Quotation edited for clarity.  ↩

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