James Madison · Alexander Hamilton
Federalist No. 37 is Madison at his most candid about the limits of language — human words are imperfect instruments. Federalist No. 78 is Hamilton's classic statement of the judicial role: the judiciary will have "neither FORCE nor WILL, but merely judgment."
Discussion Questions
- Federalist No. 37 concedes the imperfection of language; Federalist No. 78 nonetheless insists that the judge's office is "judgment" and not "will." If language is irreducibly imperfect, can the line Hamilton draws between judgment and will actually hold?
- What does Hamilton's confidence in that distinction presuppose about the character — and the virtues — of the judge? Connect this to what you previously read about the virtues of justice and practical wisdom.
J. Joel Alicea · Stephen E. Sachs
Read these three articles together, which test whether and to what extent any constitutional theory that prescribes how judges should decide cases must rest on a moral argument.
Discussion Questions
- Identify the strongest version of an attempt to avoid moral argument in constitutional theory. Does Alicea's critique successfully reach it?
- Sachs argues that asking "why be an originalist?" is like asking "why be a heliocentrist?" — once the descriptive question is settled, the practical case follows from ordinary truth-telling reasons, not from controversial moral theory. Is the heliocentrism analogy apt?
- Where do you locate the strongest move in this exchange? If you had to side with one of the two, which would you side with, and why?
- Suppose Alicea is right that constitutional theory cannot avoid making controversial moral claims. What follows? Does it mean originalism is dead? That common-good constitutionalism is vindicated? That we need a new approach? Or simply that the conversation has to be different than it has been?
- Scalia's defense of originalism is famously pragmatic: he calls it the "lesser evil." Alicea, by contrast, argues that originalism rests on a substantive moral foundation that must be defended on its own terms. As you consider the readings this week and next, consider whether Alicea's project completes Scalia's, replaces it, or pulls against it. Could Scalia have agreed with Alicea if he had wanted to? Should he have wanted to?