Hamilton on the Judiciary ...by Eric Shapiro 10/14/09
The central premise of Alexander Hamilton’s Federalist No. 78 is that a strong judiciary is needed to ensure that the legislature, the executive and the people adhere to the Constitution. Furthermore, it is necessary for the federal courts to remain independent of outside influence so that they can interpret the laws and cases that come before them in a just, unbiased manner. Hamilton’s argument that a qualified, impartial judiciary branch is needed to safeguard the Constitution in the face of political maneuvering and too much populist-style democracy, is persuasive in large part because, like the other federalist papers, it anticipates problems that will arise as a result of mankind’s tendency towards short-term self-interest and lack of long-term perspective.
Although democratic values are an essential element of the American system, Hamilton argues that without a built-in safeguard to protect against the tyranny of the majority, as well as the short-term political interests of the elected officials whom they vote into power, the system cannot sustain itself. As a solution, Hamilton advocates for the creation of an independent judiciary to ensure that the other branches of government, as well as the people themselves, do not subvert or violate the Constitution.
Hamilton devotes a substantial portion of his essay to addressing the concerns of his contemporaries. In the aftermath of the American Revolution, many citizens were wary of a central government with too much power. This was understandable, considering the years of oppression they faced at the hands of Great Britain, as well as interference from other European powers such as France and Spain. The Articles of Confederation were intended as a compromise, uniting the states in a voluntary “firm league of friendship” that vested power mostly in the states.
It soon became clear to the founding fathers - including Alexander Hamilton and James Madison - that America could not survive with the ineffective regulations and lack of enforcement power inherent in the Articles and they called for something more binding. (Brogan 194) Those who disagreed, termed “anti-federalists,” emphasized state and individual rights above all else, and were distrustful of any structure or mechanism put in place to ensure a strong and efficient nation if it threatened their local rights in the process. (Brogan 206) Therefore, they were understandably concerned about the notion of a federal judiciary whose members were appointed and would continue to hold office on the basis of “good behavior.” Without accountability in the form of either election or term limits, what was to prevent the judges from abusing their power and/or exercising their excessive influence on the other branches accountable to the people?
Hamilton asserts that, contrary to the claims of anti-federalists, “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.” (Federalist No. 78) With power of the purse in the hands of the legislature, and the power to command the military in the hands of the executive, the judiciary will never have the means to exert undue influence on the other branches of government.
The legislature and executive, on the other hand, pose a danger to the autonomy of the court. Hamilton states: “if the power of making [appointments] was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch with possessed it” (Federalist No. 78). Hence, permanence in office is a necessary compromise to ensure that members of the federal judiciary are free to judge the cases before them without taking into consideration the approval of the legislature or the executive. Similarly, if the court were answerable directly to the people, “there would be too great a disposition to consult popularity” (Federalist No. 78) Hamilton’s defense of lifetime appointment for the sake of judicial autonomy is characteristic of the realistic appraisal of human nature that went into crafting the Constitution. He recognizes that even the most honorable of judges would be at risk of falling prey to political pressures if they needed to answer to the executive or the legislature.
However, judicial autonomy is not Hamilton’s only argument in support of lifetime appointment. In addition, Hamilton explains, it is of the utmost importance that highly qualified individuals with experience in law sit on federal courts. He points out that “a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government” (Federalist No. 78). Therefore, a full and thorough understanding of not only the Constitution, but the numerous other laws of the land, is something that would take much time, commitment and talent to attain. Nevertheless, such training is necessary to avoid “arbitrary discretion,” or, in other words, a decision based on the personal values of a judge rather than a complete understanding of the laws. Without the guarantee of a lifetime appointment (on the condition of good behavior), men of such quality would have no incentive to abandon their already lucrative and/or prestigious careers to serve on federal courts.
In calling for an autonomous judiciary branch with highly capable officials that is not subject to the legislative, executive, or popular will, Hamilton tacitly acknowledges that the government needs to place considerable limits on democracy. This is in line with his famous comment that “[the] people is a great beast” and, more importantly, the underlying sentiment in the Federalist Papers as a whole and, a short time later, the Constitution. (Hofstader 14)
The founding fathers are widely considered to have been staunch democrats. It is therefore ironic that the most influential documents in the nation’s history, authored by two of the foremost founders, were written to limit democracy (Hofstader 9). Alexander Hamilton, perhaps more so than any other framer of the Constitution, was wary of the disastrous effects the masses and their representatives could have on the stability of the government if given too much say in its operation. (Brogan 193) To him, the Constitution itself was a means to centralize federal power with the federal government; in fact, he valued individual and state liberty very little in comparison to the other prominent founders. (Brogan 194)
James Madison saw the federal powers delineated in the Constitution as necessary to guard against the dangers of factionalism; his goal was to temper the excesses of Democracy to an extent sufficient for the Union to prosper. Hamilton, on the other hand, looked down on the masses and sought to limit democracy to as great an extent as possible. He was especially intent on weakening the legislature, since it was the most direct representative of the people.
It was with this objective in mind that he wrote Federalist No. 78, going so far as to address the issue specifically: “By a Limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… 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” (Federalist No. 78). In other words, the only way to sufficiently check the legislature is by creating an independent judiciary that will see to it that no bills passed in Congress go against the Constitution.
Although Hamilton’s distrust for the masses is well documented, it was necessary for him to pay lip service to the idea that the power rested in the people. Thus, instead of blatantly dismissing them, he declares that their will is inexorably tied to that of the Constitution. He cleverly refers to a legislative act inconsistent with the Constitution as an affirmation “that the deputy is greater than his principle; that the servant is above his master; that the representatives of the people are superior to the people themselves” (Federalist No. 78) Rather than blatantly giving his opinion that the people cannot be trusted to govern, which would come across as arrogant and condescending, Hamilton cleverly plays with the definition of words. By stating as plain fact that the Constitution represents the will of the people, anyone who opposes the document is by implication defying the common will. His opponents would argue that the legislature, staffed by popularly elected representatives, and the states constitute the will of citizens, as opposed to a Constitution voted on at a specific point in time by a specific group of politicians . Hamilton does not even consider this viewpoint, instead opting to define terms in a way that makes it appear as if he is obviously in the right. For the remainder of the essay, it is simply stated as a given that the Constitution, not the legislature, represents the popular will. By this, it can be inferred that Constitution’s critical core, abstract principles can be forgotten, or twisted beyond recognition, by short-term popular sentiment, and its tribunes, the legislators.
For example, in reassuring the reader that the judiciary is not disproportionately powerful and therefore a threat to individual rights, he states: “…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.” Associating the Constitution with the popular will is not necessarily disingenuous, but at times may be correct – it is also a brilliant political move in justifying Hamilton’s concept of the judiciary.
This is pertinent because by painting the Constitution as the indisputable will of the people, the judiciary is by extension the guardian of the popular will. In different and perhaps more questionable terms, the Constitution is designed to protect the people from the malicious influence of “designing men” and, tellingly, from themselves. Hamilton makes it clear that although the people, through their representatives in the legislature, have the right to alter federal laws, changes should not be made lightly. He explains that they should not be able exercise the aforementioned powers “whenever a momentary inclination happens to lay hold of a majority of their constituents” (Federalist No. 78). Until the Constitution is amended through an intensive process of reflection and debate, the legislative branch can make no laws that contradict it. This leaves the question of who will decide what is constitutional given that the legislative branch is accountable to the people and their “momentary inclinations” (Federalist No. 78). The same goes for state governments and executive to a greater or lesser extent. Hamilton proposes that the best option in the face of this dilemma is to create an autonomous branch of the federal government answerable only to their consciences as they read the Constitution, with highly skilled, professional members who are well versed in the law, namely the judiciary.
Although Article III of the Constitution, which deals with “judicial power and tenure of office” is significantly shorter than those that pertain to the executive and legislative branches, lifetime appointment contingent upon good behavior, the key element of Hamilton’s argument in Federalist No. 78, is guaranteed: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior” (US Const., art. 3, sec. 4). It is essential that those on the judicial branch receive life appointments for the dual reasons of ensuring that the most competent men have incentive to serve and so that their rulings are not biased by the short-term populist, nakedly political concerns associated with running for election or satisfying one or both of the other branches of government. Only then can a competent and unbiased judicial branch defend the Constitution, or, at least according to Hamilton, the will of the people.
BibliographyBrogan, Hugh. History of the U. S. A. Second ed. New York: Penguin Books, Limited, 2001. 186+. Hofstadter, Richard. The American Political Tradition and the Men Who Made It. New York: Vintage Books, 1989.
Although democratic values are an essential element of the American system, Hamilton argues that without a built-in safeguard to protect against the tyranny of the majority, as well as the short-term political interests of the elected officials whom they vote into power, the system cannot sustain itself. As a solution, Hamilton advocates for the creation of an independent judiciary to ensure that the other branches of government, as well as the people themselves, do not subvert or violate the Constitution.
Hamilton devotes a substantial portion of his essay to addressing the concerns of his contemporaries. In the aftermath of the American Revolution, many citizens were wary of a central government with too much power. This was understandable, considering the years of oppression they faced at the hands of Great Britain, as well as interference from other European powers such as France and Spain. The Articles of Confederation were intended as a compromise, uniting the states in a voluntary “firm league of friendship” that vested power mostly in the states.
It soon became clear to the founding fathers - including Alexander Hamilton and James Madison - that America could not survive with the ineffective regulations and lack of enforcement power inherent in the Articles and they called for something more binding. (Brogan 194) Those who disagreed, termed “anti-federalists,” emphasized state and individual rights above all else, and were distrustful of any structure or mechanism put in place to ensure a strong and efficient nation if it threatened their local rights in the process. (Brogan 206) Therefore, they were understandably concerned about the notion of a federal judiciary whose members were appointed and would continue to hold office on the basis of “good behavior.” Without accountability in the form of either election or term limits, what was to prevent the judges from abusing their power and/or exercising their excessive influence on the other branches accountable to the people?
Hamilton asserts that, contrary to the claims of anti-federalists, “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.” (Federalist No. 78) With power of the purse in the hands of the legislature, and the power to command the military in the hands of the executive, the judiciary will never have the means to exert undue influence on the other branches of government.
The legislature and executive, on the other hand, pose a danger to the autonomy of the court. Hamilton states: “if the power of making [appointments] was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch with possessed it” (Federalist No. 78). Hence, permanence in office is a necessary compromise to ensure that members of the federal judiciary are free to judge the cases before them without taking into consideration the approval of the legislature or the executive. Similarly, if the court were answerable directly to the people, “there would be too great a disposition to consult popularity” (Federalist No. 78) Hamilton’s defense of lifetime appointment for the sake of judicial autonomy is characteristic of the realistic appraisal of human nature that went into crafting the Constitution. He recognizes that even the most honorable of judges would be at risk of falling prey to political pressures if they needed to answer to the executive or the legislature.
However, judicial autonomy is not Hamilton’s only argument in support of lifetime appointment. In addition, Hamilton explains, it is of the utmost importance that highly qualified individuals with experience in law sit on federal courts. He points out that “a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government” (Federalist No. 78). Therefore, a full and thorough understanding of not only the Constitution, but the numerous other laws of the land, is something that would take much time, commitment and talent to attain. Nevertheless, such training is necessary to avoid “arbitrary discretion,” or, in other words, a decision based on the personal values of a judge rather than a complete understanding of the laws. Without the guarantee of a lifetime appointment (on the condition of good behavior), men of such quality would have no incentive to abandon their already lucrative and/or prestigious careers to serve on federal courts.
In calling for an autonomous judiciary branch with highly capable officials that is not subject to the legislative, executive, or popular will, Hamilton tacitly acknowledges that the government needs to place considerable limits on democracy. This is in line with his famous comment that “[the] people is a great beast” and, more importantly, the underlying sentiment in the Federalist Papers as a whole and, a short time later, the Constitution. (Hofstader 14)
The founding fathers are widely considered to have been staunch democrats. It is therefore ironic that the most influential documents in the nation’s history, authored by two of the foremost founders, were written to limit democracy (Hofstader 9). Alexander Hamilton, perhaps more so than any other framer of the Constitution, was wary of the disastrous effects the masses and their representatives could have on the stability of the government if given too much say in its operation. (Brogan 193) To him, the Constitution itself was a means to centralize federal power with the federal government; in fact, he valued individual and state liberty very little in comparison to the other prominent founders. (Brogan 194)
James Madison saw the federal powers delineated in the Constitution as necessary to guard against the dangers of factionalism; his goal was to temper the excesses of Democracy to an extent sufficient for the Union to prosper. Hamilton, on the other hand, looked down on the masses and sought to limit democracy to as great an extent as possible. He was especially intent on weakening the legislature, since it was the most direct representative of the people.
It was with this objective in mind that he wrote Federalist No. 78, going so far as to address the issue specifically: “By a Limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… 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” (Federalist No. 78). In other words, the only way to sufficiently check the legislature is by creating an independent judiciary that will see to it that no bills passed in Congress go against the Constitution.
Although Hamilton’s distrust for the masses is well documented, it was necessary for him to pay lip service to the idea that the power rested in the people. Thus, instead of blatantly dismissing them, he declares that their will is inexorably tied to that of the Constitution. He cleverly refers to a legislative act inconsistent with the Constitution as an affirmation “that the deputy is greater than his principle; that the servant is above his master; that the representatives of the people are superior to the people themselves” (Federalist No. 78) Rather than blatantly giving his opinion that the people cannot be trusted to govern, which would come across as arrogant and condescending, Hamilton cleverly plays with the definition of words. By stating as plain fact that the Constitution represents the will of the people, anyone who opposes the document is by implication defying the common will. His opponents would argue that the legislature, staffed by popularly elected representatives, and the states constitute the will of citizens, as opposed to a Constitution voted on at a specific point in time by a specific group of politicians . Hamilton does not even consider this viewpoint, instead opting to define terms in a way that makes it appear as if he is obviously in the right. For the remainder of the essay, it is simply stated as a given that the Constitution, not the legislature, represents the popular will. By this, it can be inferred that Constitution’s critical core, abstract principles can be forgotten, or twisted beyond recognition, by short-term popular sentiment, and its tribunes, the legislators.
For example, in reassuring the reader that the judiciary is not disproportionately powerful and therefore a threat to individual rights, he states: “…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.” Associating the Constitution with the popular will is not necessarily disingenuous, but at times may be correct – it is also a brilliant political move in justifying Hamilton’s concept of the judiciary.
This is pertinent because by painting the Constitution as the indisputable will of the people, the judiciary is by extension the guardian of the popular will. In different and perhaps more questionable terms, the Constitution is designed to protect the people from the malicious influence of “designing men” and, tellingly, from themselves. Hamilton makes it clear that although the people, through their representatives in the legislature, have the right to alter federal laws, changes should not be made lightly. He explains that they should not be able exercise the aforementioned powers “whenever a momentary inclination happens to lay hold of a majority of their constituents” (Federalist No. 78). Until the Constitution is amended through an intensive process of reflection and debate, the legislative branch can make no laws that contradict it. This leaves the question of who will decide what is constitutional given that the legislative branch is accountable to the people and their “momentary inclinations” (Federalist No. 78). The same goes for state governments and executive to a greater or lesser extent. Hamilton proposes that the best option in the face of this dilemma is to create an autonomous branch of the federal government answerable only to their consciences as they read the Constitution, with highly skilled, professional members who are well versed in the law, namely the judiciary.
Although Article III of the Constitution, which deals with “judicial power and tenure of office” is significantly shorter than those that pertain to the executive and legislative branches, lifetime appointment contingent upon good behavior, the key element of Hamilton’s argument in Federalist No. 78, is guaranteed: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior” (US Const., art. 3, sec. 4). It is essential that those on the judicial branch receive life appointments for the dual reasons of ensuring that the most competent men have incentive to serve and so that their rulings are not biased by the short-term populist, nakedly political concerns associated with running for election or satisfying one or both of the other branches of government. Only then can a competent and unbiased judicial branch defend the Constitution, or, at least according to Hamilton, the will of the people.
BibliographyBrogan, Hugh. History of the U. S. A. Second ed. New York: Penguin Books, Limited, 2001. 186+. Hofstadter, Richard. The American Political Tradition and the Men Who Made It. New York: Vintage Books, 1989.