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The Judiciary Department
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

WE PROCEED now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. 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. To these points, therefore, our observations shall be confined.

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility.

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; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. 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, 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. 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.

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 [1] ; 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. It equally proves, that though individual oppression may now and then proceed from the courts of justice, 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 legislature 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.” [2] 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; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; 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 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.

Some perplexity respecting the rights 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 is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. 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.

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 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; 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. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. 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. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. 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 courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

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.

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 the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, [3] in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. 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. But it is easy to see, that it would require an uncommon portion of 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.

But it is not with a view to 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. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. 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 passing them; who, 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. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already 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. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. 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. 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. 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. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. 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.

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. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS.

1. The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” “Spirit of Laws.” vol. i., page 186.

2. Idem, page 181.

3. Vide “Protest of the Minority of the Convention of Pennsylvania,” Martin’s Speech, etc.

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In this 1830 response to Edward Everett of Massachusetts James Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government.  If you find the essay long-winded, you are correct in this assessment.  It is long-winded because James Madison was a hypocrite on the issue of nullification, supporting the notion when it suited him, and rejecting it when it did not. You may learn from this episode an important lesson about human nature.  The greatest of founding fathers does not always make a great secretary of state, a great president, or a great elder-statesman.  James Madison (and Thomas Jefferson) were no exceptions to this insight. Read more

Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom

“It is emphatically the province and duty of the judicial department to say what the law is.” With those understated words, Supreme Court Chief Justice John Marshall ushered in the modern era of judicial review – the notion that it is up to judges, not legislators or presidents, to finally interpret and give meaning to the nation’s Constitution and laws.

During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Algernon Sidney, the author of the Discourses, was a man of the 17th century’s Age of Reason. He was skeptical of organized religion though not by that measure doubting of God. He was firmly convinced of the inherent rationality of the human will and the essential equality of all humans as children of God, from which he deduced the ultimate sovereignty of individuals and the basis of the ethical state in the consent of the governed. That made him a foundational figure in the emerging English Whig republicanism, but one about whom history has given a divided verdict.

He was executed in 1683 for plotting to instigate rebellion against Charles II. Many historians believe that the evidence for that particular charge was procured. It is clear, however, that for many years he was supported in his machinations and plotting against the English government by generous support from the French king, Louis XIV. Read more

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article III, Section 2, Clause 1

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;10 –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Guest Essayist: Steven H. Aden, Senior Legal Counsel with the Alliance Defense Fund

Federalist 77 “complete[s] a survey of the structure and powers of the executive department,” which, Hamilton urged, “combines, as far as republican principles will admit, all the requisites to energy” the Federal Executive would require to fulfill the duties of his office.  Anticipating the skepticism of his audience, the pre-eminent Federalist added one “remaining inquiry”: “Does it also combine the prerequisites to safety, in a republican sense – a due dependence on the people, a due responsibility?”  Not to worry, Hamilton soothed:  “In the only instances in which the abuse of the executive authority was materially to be feared [i.e., appointments], the Chief Magistrate of the United States [i.e., the President] would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”

Hamilton’s rhetorical caution with his Empire State audience may have stemmed from the depth of contention the issue of appointments had engendered in the Constitutional Convention.  The final compromise settled on language that reflected the desire to maintain a strong separation between the powers of the Executive and Legislative branches.

The late Justice Byron White, writing in Buckley v. Valeo (1976), in which the Supreme Court held that Congress had violated the Appointments Clause by constituting the Federal Election Commission with a majority of commissioners appointed by Congress instead of the President, explained the importance of the clause to the Federal system and ultimately the approval of the Federal Constitution:

The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.

The Convention proposed, in alternative versions, that both Houses of Congress should appoint judicial officers, then that the Senate should do so.  Judicial and Executive officers were finally lumped together under the Appointments Clause, with the presumption being that the Judiciary being (in Hamilton’s phrase) “the least dangerous branch (Federalist 78),” Congress’ oversight of the President’s power of appointing federal judges would suffice for checks and balances over that branch.

Time and experience have revealed both the wisdom of the balance the Framers struck by the Appointments Clause and their myopic failure to foresee the real dangers posed by a life-tenured federal judiciary.  As to the latter, check Judge Vaughn Walker’s opinion in the Proposition 8 case last week, cavalierly tossing aside millennia of moral teaching on marriage as “irrational” and “discriminatory.”  As to the former, Executive nominations have rarely been voted down, perhaps demonstrating the “steady administration” inherent in a system in which “the circumstances attending an appointment…would naturally become matters of notoriety,” as Hamilton put it in Federalist 77.  One truly “notorious” exception was that of Senator John Tower, a powerhouse of American politics who was denied an appointment as Secretary of Defense 1989 due to a confluence of political and personal factors that seemed to bear out the wisdom of conferring the power of “salutary restraint” on Congress over presidential nominations.  The Left thought he had too many ties to defense contractors, and the Right condemned his extramarital infidelities, heavy drinking, and pro-abortion views.  Presuming a relative equipoise of power in the Senate (absent today), when both sides of the aisle have reasons to deny an appointment, it suggests that – as “Publius” predicted – the Executive is obliged to nominate moderate candidates to guide federal policy and programs, keeping the ship of state (in theory) more or less on course.

As to the hysterical political theater the Supreme Court confirmation process has become, that of course began with the nomination of eminent jurist Robert Bork to the  Supreme Court in 1987, whom Senate partisans voted down in part because of his perceived role in arrogating too much authority to the Executive Branch.  That story begins much earlier, but I will tell it as a kind of morality play whose lesson is that in the pas-de-trois dance for power between the three “co-equal” branches, “what goes around comes around,” and the consequences for overreaching may be severe.

Among President Richard Nixon’s manifold abuses of power, none inflamed his political enemies more than the “Saturday Night Massacre” of October 1973.  Nixon had appointed a Special Prosecutor for the Watergate Scandal, Archibald Cox, as a result of a promise his Attorney General, Elliot Richardson, had made to the Senate Judiciary Committee.  When Cox subpoenaed Nixon’s Oval Office tapes, Nixon ordered Richardson to fire him.  After all, Nixon reasoned, Cox was an “inferior officer,” whose tenure was at the pleasure of the Administration.  Richardson refused to fire Cox, though, and resigned in protest.  Nixon then ordered the Deputy Attorney General to fire Cox, and he likewise refused and resigned.  Nixon turned to next-in-line Robert Bork, then Solicitor General.  Bork was of the opinion that as a creature of the Executive, the special prosecutor was an “inferior officer” who served at Nixon’s pleasure, and he accordingly fired him.  In the brouhaha that ensued, Congress re-asserted its power over the Executive Branch by passing the Independent Counsel Act, restricting the authority of the Executive over congressionally authorized investigations.

On October 23, 1987, the Senate rejected Judge Bork’s confirmation after a heated public debate over his political positions.  Among the chief objections was that by backing Nixon’s authority, Bork had shown himself, in the words of the New York Times, “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.”  A decade later, Independent Counsel Ken Starr’s investigations into President Clinton’s improprieties led in turn to the Supreme Court’s unanimous decision in Paula Jones v. William Clinton that the separation of powers doctrine did not absolve a sitting President from having to respond to charges of sexual harassment by a low-level state employee.  Jones v. Clinton may have marked the low ebb of Presidential power (though it was perhaps also the high water mark for the rule of law).  Over two decades and both Republican and Democratic administrations, the Legislative and Judicial branches had taken advantage of the character flaws of Chief Executives to substantially reduce the President’s authority.  Conversely, the power of the unaccountable Supreme Court and the uncontrollable Congress appears to be on the rise.  One hopes that the American people will soon find ways to exert a “salutary restraint” on these branches as well, and begin to return constitutional authority to the People, with whom it truly resides.

Thursday, August 12th, 2010

Steven H. Aden is senior legal counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

 

Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.

Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.

As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.

One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.

Alexander Hamilton explains the dangers:

“The judiciary is beyond comparison the weakest of the three departments of power [1]; 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. It equally proves, that though individual oppression may now and then proceed from the courts of justice, 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 legislature 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.” [2] 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;”

  1. Is our judiciary the weakest of the three departments of power? If it is not, then the general liberty of the people are endangered by the Supreme Court and other courts across America. Is this not evidenced by the Supreme Court’s recent reluctance to uphold the basic fundamental right to bear arms? By one vote, the people of Chicago almost lost this right.

2. We Americans have every thing to fear from the Supreme Court’s union with            the  other two branches of government. Publius wrote the warning in this Federalist Paper 78.

“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;”

Publius further implores the warning:

“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”

“The manifest tenor of the constitution.”

We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.

And we will make sure that our government does so too.

Our power is in our knowledge, our voice and our vote.

Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,

“Manifest tenor of the constitution.”

God Bless,

Janine Turner
Monday, August 16th, 2010

 

Guest Essayist: Brian Faughnan, Managing Editor of LibertyCentral.org

In Federalist No. 78, Alexander Hamilton explores the proper role of the American judiciary, as laid out in the proposed Constitution. At the time, it was widely recognized that a major defect in the Articles of Confederation was the lack of a federal judiciary. And as Hamilton points out, the only real dispute is about the “manner of constituting” this proposed judiciary and “to its extent.”

Hamilton then lays out a recipe for an independent judiciary to which we should all pay particular attention today.  In light of recent Supreme Court nominations, as well as the different states’ battles over methods of judicial selection, it is critical to understand the key elements our Founders considered necessary for creating and maintaining a judiciary that respects its independent, yet limited, role.

Hamilton supports the lifetime appointment of federal judges, subject, of course, to “good behavior,” because he understands that a properly-functioning and independent judiciary “will always be the least dangerous to the political rights of the Constitution.”  To Hamilton, lifetime appointment was a critical component of an independent federal judiciary:

Alexander Hamilton, in Federalist No. 78, argued that a judiciary appointed for life constituted the citadel of the public justice and public security because to subject the judiciary to periodic appointments or elections might lead judges to decide cases to curry popular favor, instead of objectively applying the law.

John L. Dodd et al., The Case for Judicial Appointments, The Federalist Society, Judicial Appointments White Paper Task Force (2003), available at http://www.fed-soc.org/publications/pubid.89/pub_detail.asp.

Placing even more faith in the restraint of an independent judiciary, Hamilton also writes that “the judiciary is beyond comparison the weakest of the three departments of power.”  To support this, he points out that judges can’t control spending or decisions relating to war; these are better left to the Executive.  He also highlights that judges can’t direct “the strength or…wealth of the society,” another example of why the judiciary couldn’t possibly be “dangerous.”  One key part of Hamilton’s analysis is that, while courts have a duty to declare unconstitutional pieces of legislation void, their power is never to be interpreted as great than that of the legislature.

So, if judges are supposed to be so innocuous, what accounts for the long-standing debate about judicial activism?

The reason for this is fairly complex, but it can be boiled down to one particularly important observation.  As Attorney General Ed Meese recognized, “the Constitution enabled the government to control the governed, but also obliged it to control itself.”  Meese recognized that the judiciary’s departure from interpreting the original intent of the Constitution has fundamentally disabled that branch from controlling itself.   In Meese’s words, “A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.”  In other words, original intent leads to controlled judges.

The American Left has almost uniformly adopted Justice Powell’s view that “the judiciary may be the most important instrument for social, economic and political change.”  To them, the judiciary’s “independence” hinges on creating affirmative rights when it sees fit, rather than defending those negative liberties that our Constitution recognizes.  No longer do we follow Hamilton’s model of a constrained, independent judiciary.  Instead, we see a judiciary that bows to the goals of special interested groups and creates its own rules of the game.  For liberals, the Constitution is no longer a rigid boundary around a judge’s decision-making; it is merely a tool that can be warped and bended to reach a desired social, economic, or political goal.

It was this departure from Hamilton’s recipe that left Americans with the legacy of a radical out-of-control judiciary.  The branch that should be the weakest of the three now too often attempts to overpower the political branches whenever it wants to do so.

The good news is that Hamilton and his fellow Federalist Paper authors, James Madison and John Jay, left us with a guide for having a judiciary that is, truly, the “least dangerous branch.”  The answer is self-constrained judges with respect for the parameters of the Constitution.

Friday, August 13th, 2010

Brian Faughnan is the Managing Editor of LibertyCentral.org

 

Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.

Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.

As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.

One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.

Alexander Hamilton explains the dangers:

“The judiciary is beyond comparison the weakest of the three departments of power [1]; 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. It equally proves, that though individual oppression may now and then proceed from the courts of justice, 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 legislature 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.” [2] 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;”

  1. Is our judiciary the weakest of the three departments of power? If it is not, then the general liberty of the people are endangered by the Supreme Court and other courts across America. Is this not evidenced by the Supreme Court’s recent reluctance to uphold the basic fundamental right to bear arms? By one vote, the people of Chicago almost lost this right.

2. We Americans have every thing to fear from the Supreme Court’s union with            the  other two branches of government. Publius wrote the warning in this Federalist Paper 78.

“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;”

Publius further implores the warning:

“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”

“The manifest tenor of the constitution.”

We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.

And we will make sure that our government does so too.

Our power is in our knowledge, our voice and our vote.

Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,

“Manifest tenor of the constitution.”

God Bless,

Janine Turner
Monday, August 16th, 2010

 

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

A crucial aspect of our republican form of government is an independent judicial branch that cannot be cowed by either of the two other branches. Lifetime tenure – addressed in Federalist #78 – prohibits the president from revoking a judicial appointment should he later come to regret it. And a set salary, which cannot be diminished, keeps the legislature from starving a judge off the bench. This is the topic of Federalist #79.

For the most part, this Paper is relatively straightforward and unremarkable.  The subject matter is not particularly complicated.  If judges are to be as unbiased as possible, they cannot be tempted to adjust their decisions to conform with the views of the current majority in Congress – lest they have their salary cut.

But at least one remarkable aspect of #79 is the evidence it provides of the foresight of the Founding Fathers.  In explaining why the amount of judicial compensation is left to the discretion of Congress, Hamilton notes that the value of money changes over time, and “[w]hat might be extravagant to-day, might in half a century become penurious and inadequate.”  Quite an obvious consideration, but it demonstrates that the authors of the Constitution knew the policies they were establishing had ramifications for years to come and acted accordingly.

This important principle was reiterated about 30 years later by Justice Marshall in M’Culloch v. State of Maryland, 17 U.S. 316 (1819), which determined that Congress has the right to charter a national bank, even though the power to do so is not specifically enumerated in the Constitution.  Justice Marshall reasoned that, so long as it is not prohibited by the Constitution, Congress has the discretion to use such means as needed to further the powers they do have, such as collecting taxes and regulating commerce.

This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Id. at 41 (emphasis added).

Perhaps this willingness to think in terms of decades, centuries, and ages, instead of just the next year or two, is why our form of government has survived relatively unchanged for over 200 years.  The Founders’ foresight is in marked contrast to recent acts of our legislature that are more concerned about appeasing the current constituency rather than doing what’s best for the nation. Our leaders would do well to heed the Founders’ example and do what is right – long term, as well as short term – instead of what is expedient.

Monday, August 16th, 2010

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

 

What an exciting first week we have had!  Articles I, II, and III of the United States Constitution, with some outstanding guest bloggers: David Bobb, Andrew Langer and Lawrence Spiwak.

A big thank you today to Lawrence Spiwak for his thoughts on Article III.  Mr. Spiwak clearly explained the delicate system of checks and balances working  in concert with a strong and independent judiciary.  I loved Mr. Spiwak’s point that the best mechanism for change in the judicial branch is to let the electoral process play out.  That is the best mechanism for change in any branch of the government, but it first requires informed, educated, engaged, and enthusiastic citizens, citizens who know the United States Constituion and our country’s founding principles!

When reading Article III, I was struck by its brevity, as compared with Articles I and II, and how much latitude Congress was given in establishing the Court system – another example of checks and balances at work.

I was also very interested in the Alexander Hamilton quote Bill posted from Federalist 78, so I looked it up and thought it worth posting in its entirety:

“Whoever attentively considers the different departments of power must perceive, that in a government 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, 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. It may truly be said to have neither Force nor Will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of  its judgments.”

“Neither Force nor Will, but merely judgement.”   I had never thought of the differing powers of the three branches in those terms before, but it is true – the executive and legislative branch have many more enforcement mechanisms and sheer power and will at their disposal, than the judicial branch.

Thank you for joining us this week as we explored the three branches of government in Articles I, II, and III of the Constitution.   The Assignment for the weekend is to read Articles IV, V, VI, and VII and be ready to blog on them, on Monday!  Tuesday we will blog on the Amendments, and Wednesday we will blog on the the first Federalist Paper.

Have a Blessed weekend!

See you on Monday!!

Cathy Gillespie

April 23, 2010

3 Responses to “April 23, 2010 – Article III of the U.S. Constitution – Cathy Gillespie”

  1. Jim Baxter says:

    The Founding principles of our Constitution clearly state that
    the powers of government are permanently in the mind and
    hand of The People of the United States of America. Thus,
    every elected person is a temporary steward of their office
    and obligated to serve The American People while in office.

    Such elected officials need to be reminded that they do not
    own the office. WE, The American People, are the owners and
    may give orders to the elected & appointed stewards of the office.

    I have yet to hear this important point-of-failure on the part of
    those who seek to ‘change’ our way of life to an historically
    failure-oriented system of non-representation of stewardshp
    to The People. Why?

    Begging compromise won’t work with the ignorant! Freedom is
    the proper enlargement – not fewer choices for the choicemaker!

    semper fidelis
    Jim Baxter
    Sgt. USMC
    WWII & Korean War

    pointman/follower of The Lion of Judah

    + + +

  2. Clearly our Founding Fathers constructed our Republic on Biblical Principles and like anything else our morality MUST have a “Standard of Measure”, because God’s Word never changes and is always JUST. If we depend on what man’s values are we will always fall short of Justice and the Scales will no longer be balanced. Observing how politicians try to “fundamentally” change our society and inplement their idea of “values” is it any wonder why our country is so divided? Consider what would happen if we changed the “Standards of Measure” for other things, (Science, Mathematics, Music, etc.) The Bible says that the “devil is the author of confusion…..” All this does is separate and divide. However I see many coming back to their conservative principles and I’m thrilled.

  3. valerie says:

    In 1787, the year the constitution was written, Congress passed the Northwest Ordinance. It states that formal education is to include religion, a “fundamental system of beliefs concerning man’s origin and relationship to the cosmic universe as well as his relationship with his fellowmen.”

    In his farwell address Washington stated, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports . . . And let us with caution indulge the supposition that morality can be maintained w/o religion.”

    Jefferson wrote a bill for establishing elementary schools in Virginia. It includes the following statement, “No religious reading, instruction, or exercise shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination.” He must have assumed religion would be taught.

    Franklin outlined five fundamentals in all “sound” religion: one God, the Creator of the universe; said God should be worshipped; the most fundamental good we can do for him is to be good to others; and the soul of man is immortal and will be treated with justice in the afterlife in regards to his conduct here.

    Samuel Adams called the above the Religion of America and equated it with the religion of all mankind.

    These tenets run thru the founder’s writings, and they thought they were so important in “providing good government and the happiness of mankind” that they wanted them taught in school.

    It is obvious from the founder’s own words that they viewed separation of church and state very differently than it is seen today.

    Above facts come from The 5000 Year Leap