For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. I Hamilton mean so long as the judiciary remains truly distinct from both the legislative and executive.
To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. According to the plan of the convention, all the judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions, and among the rest, to that of this State. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. No legislative act, therefore, contrary to the Constitution, can be valid. It argues that the federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency.
As to the mode of appointing the judges: Hamilton describes it as a duty and their province.
Federalist Papers Summary 78
Without this, all the reservations of particular rights or privileges would amount to nothing. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in th meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
One can realistically wonder if the framers of the Constitution wanted the courts to be the sole voice on federal law constitutionality. But it is not with a view oaper infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.
This exercise of judicial discretion in determining between two contradictory laws is exemplified in a familiar instance.
Carey and James McClellan, eds. It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States ; it is the first of six essays by Hamilton on this issue. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act.
This is the basis for saying that the courts are not superior to the legislature even though they can void their laws and that both are inferior to the power of the people.
It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent.
Federalist No. 78
These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.
The only power of the judicial branch is the power of judgment:. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. Why does Publius think that the judiciary is the least dangerous branch? Federalist Papers Summary No. Rather, it ensures that the Constitution remain the supreme law of the land. The partition of the judiciary authority between different courts and their relations to each other.
A constitution is in fact, and must be regarded by the judges as, a fundamental law. First, the mode of appointing judges.
Federalist No. 78 – Teaching American History
The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.
This paper deals exclusively with the rationale for their tenure which is they hold their offices during good behavior, that is for life. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
Publius Alexander Hamilton May 28, In England, although most agents of the Crown served yhesis the pleasure of the King,” public officials were often granted a life tenure in their offices.
To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. Interestingly this and all remaining papers have the same date. The benefits of the integrity and moderation of the judiciary have thess been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.
It examines primarily the term of office for judges but in making the case for lifetime appointments it details the responsibilities of the federal courts.
It is not otherwise to be supposed that the Tjesis could intend to enable the representatives of the people to substitute their will to that of their constituents. But in a Constitutional system, any law contradicting the Constitution will be ruled invalid. As to the tenure by which the judges are to hold their places: From Wikipedia, the free encyclopedia.