The
Power of the Judicial Branch:
The Federalist Number 78 and the Anti-Federalist 78
Introduction
When the Constitution was first written, many people supported
it. However, there were some people who were opposed to it.
The framers feared that not enough states would ratify it
and decided to write a series of persuasive papers to influence
people's opinion. They attempted to convince people that the
structures and concepts in the Constitution were right for
a country seeking to balance power between a national government,
state governments, and the people. The series of articles
written by Alexander Hamilton, James Madison, and John Jay,
appeared in local newspapers under the pseudonym Publius.
Later, these articles were compiled and published as a book
called The Federalist Papers. Others who opposed the
Constitution compiled their response in a document called
The Anti-Federalist Papers.
The
Federalist Number 78 and the corresponding Anti-Federalist
document dealt specifically with the judicial branch of
government. Read the excerpts from each of these texts then
answer the questions that follow.
The Federalist No. 78
WE PROCEED now to an examination of the judiciary department
of the proposed government.
According
to the plan of the convention, all judges who may be appointed
by the United States are to hold their offices DURING GOOD
BEHAVIOR. . . . In a monarchy it is an excellent barrier
to the despotism of the prince; in a republic it is a no
less excellent barrier to the encroachments and oppressions
of the representative body. And it is the best expedient
which can be devised in any government, to secure a steady,
upright, and impartial administration of the laws.
Whoever
attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights
of the Constitution; because it will be least in a capacity
to annoy or injure them. The Executive not only dispenses
the honors, but holds the sword of the community. The legislature
not only commands the purse, but prescribes the rules by
which the duties and rights of every citizen are to be regulated.
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.
This
simple view of the matter suggests several important consequences.
It proves incontestably, that the judiciary is beyond comparison
the weakest of the three departments of power; that it can
never attack with success either of the other two . . .
that . . . the general liberty of the people can never be
endangered from that quarter; I mean, so long as the judiciary
remains truly distinct from both the legislative and the
Executive. For I agree, that "there is no liberty,
if the power of judging be not separated from the legislative
and executive powers." And it proves, in the last place,
that as liberty can have nothing to fear from the judiciary
alone, but would have every thing to fear from its union
with either of the other departments . . . and that as nothing
can contribute so much to its firmness and independence
as permanency in office, this quality may therefore be justly
regarded as an indispensable ingredient in its constitution,
and, in a great measure, as the citadel of the public justice
and the public security.
The
complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution,
I understand one which contains certain specified exceptions
to the legislative authority; such, for instance, as that
it shall pass no bills of attainder, no ex-post-facto laws,
and the like. Limitations of this kind can be preserved
in practice no other way than through the medium of the
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.
If
it be said that the legislative body are themselves the
constitutional judges of their own powers . . . it may be
answered, that this cannot be the natural presumption, where
it is not to be collected from any particular provisions
in the Constitution. It is not otherwise to be supposed,
that the Constitution could intend to enable the representatives
of the people to substitute their WILL to that of their
constituents. 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.
The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and
must be regarded by the judges, as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the
legislative body. If there should happen to be an irreconcilable
variance between the two, that which has the superior obligation
and validity ought, of course, to be preferred; or, in other
words, the Constitution ought to be preferred to the statute,
the intention of the people to the intention of their agents.
Nor
does this conclusion by any means suppose a superiority
of the judicial to the legislative power. It only supposes
that the power of the people is superior to both . . .
If, then, the courts of justice are to be considered as
the bulwarks of a limited Constitution against legislative
encroachments, this consideration will afford a strong argument
for the permanent tenure of judicial offices, since nothing
will contribute so much as this to that independent spirit
in the judges which must be essential to the faithful performance
of so arduous a duty.
Upon
the whole, there can be no room to doubt that the convention
acted wisely in copying from the models of those constitutions
which have established GOOD BEHAVIOR as the tenure of their
judicial offices . . . The experience of Great Britain affords
an illustrious comment on the excellence of the institution.
Questions
to Consider:
-
Explain the following passage.
"the
judiciary, from the nature of its functions, will always
be the least dangerous to the political rights of the
Constitution . . . [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."
What does the author mean by this?
- Examine
the following passage.
"For there is no liberty, if the power of judging
be not separated from the executive and legislative powers."
What does the author mean by this? Which principle of
government does this support?
-
According to the author, why are the courts vital to a
limited constitution?
- Why
does the author believe that judges have permanent tenure?
- What
is the author's attitude toward the proposed Supreme Court
of the United States?
Antifederalist
No. 78 - 79
. . . The supreme court under this constitution would be
exalted above all other power in the government, and subject
to no control. . . .
The
judges in England, it is true, hold their offices during
their good behavior, but then their determinations are subject
to correction by the house of lords; and their power is
by no means so extensive as that of the proposed supreme
court of the union. . . . But the judges under this constitution
will control the legislature, for the supreme court are
authorised in the last resort, to determine what is the
extent of the powers of the Congress. They are to give the
constitution an explanation, and there is no power above
them to set aside their judgment . . . there is no power
above them that can control their decisions, or correct
their errors.
.
. . this court will be authorised to decide upon the meaning
of the constitution; and that, not only according to the
natural and obvious meaning of the words, but also according
to the spirit and intention of it. In the exercise of this
power they will not be subordinate to, but above the legislature
. . . The supreme court then has a right, independent of
the legislature, to give a construction to the constitution
and every part of it, and there is no power provided in
this system to correct their construction or do it away.
If, therefore, the legislature pass any laws, inconsistent
with the sense the judges put upon the constitution, they
will declare it void; and therefore in this respect their
power is superior to that of the legislature. In England
the judges are . . . subject to have their decisions set
aside by the house of lords, for error . . . But no such
power is in the legislature. The judges are supreme and
no law, explanatory of the constitution, will be binding
on them.
When
great and extraordinary powers are vested in any man, or
body of men, which in their exercise, may operate to the
oppression of the people, it is of high importance that
powerful checks should be formed to prevent the abuse of
it . . . I suppose the supreme judicial ought to be liable
to be called to account, for any misconduct, by some body
of men, who depend upon the people for their places; and
so also should all other great officers in the State, who
are not made amenable to some superior officers. . . .
Questions to Consider:
- According
to the document, how does the Supreme Court of the United
States differ from the highest court in Great Britain?
- What
is the author's attitude toward the proposed Supreme Court
of the United States? Which statements or phrases in the
document support your opinion?
- What
recommendation does the author make?
- Compare
this document with The Federalist Number 78. What
are the major points on which the authors disagree? On
which point(s) do they agree?
- How
would the United States be different today if the proposals
outlined in the Anti-Federalist had been accepted?
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