Guest Essayist: Brian Faughnan, Managing Editor of

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

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