plain that the arbitrator must arbitrate in their favor, for if he
arbitrated as Mr. Jefferson would have wished, the United States under
the Constitution would have differed little from the United States under
the Confederation. The Federalists, therefore, must control the
arbitrator. If the Constitution were to be adopted, Hamilton and every
one else knew that Washington would be the first President, and
Washington could be relied on to appoint a strong Federalist bench.
Hence, whatever might happen subsequently, when the new plan first
should go into operation, and when the danger from insubordination among
the states would probably be most acute, the judiciary would be made to
throw its weight in favor of consolidation, and against disintegration,
and, if it did so, it was essential that it should be protected against
anything short of a revolutionary attack.

In the convention, indeed, Charles Pinckney of South Carolina suggested
that Congress should be empowered to negative state legislation, but
such an alternative, for obvious reasons, would have been less palatable
to Hamilton, since Congress would be only too likely to fall under the
control of the Jeffersonian party, while a bench of judges, if once well
chosen, might prove to be for many years an "excellent barrier to the
encroachments and oppressions of the representative body."[9]

I infer that Hamilton and many other Federalists reasoned somewhat thus,
not only from what they wrote, but from the temper of their minds, and,
if they did, events largely justified them. John Jay, Oliver Ellsworth,
and John Marshall were successively appointed to the office of Chief
Justice, nor did the complexion of the Supreme Court change until after
1830.

What interests us, however, is not so much what the Federalists thought,