The story behind Hamilton’s writing of the Federalist Papers is just amazing.
He was a practicing lawyer at the time.
He’d spend all day at the office, litigating cases, defending clients, and he’d come
home and dash off a couple of Federalist Papers.
Federalist 78 was Alexander Hamilton’s famous defense that proposed a federal judiciary.
His argument was that it would be the branch that was least dangerous to the rights of
the people.
He was responding to the argument made by a critic of the federal judiciary who wrote
under the pen name Brutus.
Brutus argued, “they have made the judges independent in the fullest sense of the word.
There is no power above them to control any of their decisions, there is no authority
that can remove them, and they cannot be controlled by the laws of the legislature.
In short, they are independent of the people, of the legislature, and of every power under
heaven.”
It’s not hard to find echoes of the arguments we hear today about the Supreme Court.
Modern criticism of the Court for going too far in asserting judicial supremacy, for not
respecting the other branches or respecting federalism, and that’s what Hamilton was
responding to when he defended the judiciary, defended its power of judicial review, and
defended life tenure.
Hamilton isn’t advocating that we should give independence to judges simply to free
them from the constraints of law and government, rather he’s giving them independence in
a very specific context, in the context of the other branches of government.
So, the most obvious way that judicial independence helps to check the other branches is that
it prevents Congress especially, and also the executive branch, from overrunning the
judiciary, from forcing their hand, and it gives a judge the space to use his best judgment
in accordance with the Code, the legal code, and the precedence to decide the cases faithfully
under the Constitution and the laws.
The judge exercises discretion in a very limited way.
After the Constitution, the statutes, the regulations, and the precedents have all been
evaluated and brought to bear on the case, there might be the small measure of judgment
that the Court needs to exercise.
But what’s important is that up to that point, the judge is faithfully reading the
laws that bind him, so that he’s exercising discretion only in this very limited way.
And on top of that, Hamilton recognized that the best judges would be produced by a lifetime
of study, of study of the laws, the legal code, the precedence, and all the things a
judge needs to do in order to faithfully execute his office.
That was the purpose of judicial independence, the idea that these judges would need to be
protected from the other branches or else they wouldn’t be able to do their job correctly
and they wouldn’t have the incentive to leave practice and serve in government.
When the Court is called upon more and more to decide evermore controversial issues, social
issues, cultural issues, issues of competing rights, to decide these cases for society,
sometimes once and for all, it’s extremely important for the Court to exercise the self-restraint
that Hamilton promised it would in Federalist 78.
Hamilton had an incredibly systematic mind and a clear mind.
It always in the end came back down to the government as a whole and finding a way to
ensure that the system as a whole hangs together and succeeds.
Hamilton is pressing the case for constitutionalism.