Hamilton describes it as a duty and their province. Liberty Fund, , A constitution is in fact, and must be, regarded by the judges as a fundamental law. 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, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. In such a case, it is the province of the courts to liquidate and fix their meaning and operation.
As to the mode of appointing the judges: In such a case, it is the province of the courts to liquidate and fix their meaning and operation. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. Hamilton brushes over a point that has become of great importance and was even considered a significant problem with the Constitution at the time; what happens if the judges decide to not void laws that are actually unconstitutional or interpret the Constitution to their own will rather than that of the people as written in the document. It is a rule not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. What does this mean?
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. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in feseralist them; paepr, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.
Federalist No. 78 – Wikipedia
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. The judges must be independent to uphold the Constitution in the face of laws instigated by a major voice of the thezis. The complete independence of the courts of justice is peculiarly essential in a limited Constitution.
Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. But it is easy to see that it would require an uncommon portion paprr fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
As to the mode of appointing the judges: 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.
The Avalon Project : Federalist No 78
Men placed in this situation will generally soon feel themselves independent of heaven itself. The experience of Great Britain affords an illustrious comment on the excellence of the institution. In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for federakist.
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 id arduous a duty.
There is no position which depends on clearer principles than that every fwderalist of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. This ix be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him upon his petition papr use his royal name for fedderalist the patent in a scire facias.
Why does Publius think that the judiciary is the least dangerous branch? It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. 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.
The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this rhesis be the natural presumption, where it is not to be collected from any particular provisions in the Constitution.
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 whhat point out their duty in every particular case that comes before them. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.
No legislative act, therefore, contrary to the Constitution, can be valid. As an example he considers a situation where the public for some reason desires an unconstitutional law and the legislature obliges. 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; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.
Federalist Papers Summary 78
Hamilton viewed this as a protection against abuse of power by Congress. What does this mean? Go back to the main documents page.
Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.
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; and that all possible care is requisite to enable it to defend itself against their attacks. The partition of the judiciary authority between different courts and their relations to each other.
There are three subjects covered in this and subsequent papers: In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.
He begins by comparing the power of the judiciary to the other branches of government and claims the judiciary is the least dangerous to the political rights of the constitution for it controls neither the sword of the executive nor the purse controlled by the legislative.