At about this time in 1788, Alexander Hamilton (a.k.a. Publius) writes Federalist Paper No. 78. His essay would appear in a bound volume with other Federalist essays. The paper examines the judiciary created by the Constitution.
Hamilton spends the bulk of his time discussing the tenure of judges as it relates to the nature of what they do. But, honestly, much of what Hamilton says in this paper probably strikes the modern reader as odd, given how powerful our activist courts have become.
Hamilton begins by noting that the judiciary “will always be the least dangerous to the political rights of the Constitution.” He explains: “[The judiciary] 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.”
He adds a caveat that has proven all too true today: “I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. . . . ‘[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.’” (Ugh.)
Independent courts are necessary, Hamilton observes, particularly because of the limited nature of the Constitution being proposed. The Constitution contains limitations on the legislative authority. “Limitations of this kind, Hamilton notes, “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. Without this, all the reservations of particular rights or privileges would amount to nothing.”
Does this power to declare acts unconstitutional make the judiciary superior to the legislature?
Not in Hamilton’s view. The courts are simply “an intermediate body between the people and the legislature,” and the courts have a duty to “keep the latter within the limits assigned to their authority.” The people are superior to both the judiciary and the legislature. And, if the legislature has attempted something that “stands in opposition to that of the people, [as] declared in the Constitution,” it is the judges’ duty to say so. Judges are not to substitute their own preferences: They declare only the law.
Hamilton believes that life tenure for judges gives them “that independent spirit” required for the “faithful performance of so arduous a duty.” Judges who hold only a “temporary commission” will be unable to adhere so steadfastly to the Constitution. Instead, they would be tempted into “improper complaisance” to whomever is making the appointment or into “too great a disposition to consult popularity.”
Perhaps what is most interesting in this entire argument is that Hamilton spends almost no time evaluating what happens when judges fail to stick to their assigned constitutional role. What happens when they begin to exercise WILL and not JUDGMENT? Perhaps he thinks that the legislature will impeach judges who have abdicated their duty so completely.
Hmmm. I guess not.
Logistical note for those who care:
As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).