Number 78 - Hamilton

1. Number 78 - Hamilton The Ideas and Theories Federalists Papers

2. Federalist #78- Hamilton • -The judiciary has the least power to be tyrannical • It has no power over the sword (force) nor the purse (money) • It only offers judgment (and requires the executive to enforce its judgment) • -The judiciary is the weakest of the branches because it cannot attack the other two and needs to be careful when defending itself. • -While the judiciary will not be the source of tyranny an independent judiciary is needed to guarantee liberty • -The life-term nature of the Supreme Court gives the court independence from the other branches and is thus vital • -The independence of the courts are essential • -There are certain limits to legislative power • no bills of attainder • no ex post facto laws • etc… • -These limitations can be preserved only through the courts “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” • -Some questions have arisen over whether the courts are superior to the other branches; after all, can’t the court void legislative and executive acts? • But: • 1) No act can be valid if it is in violation of the constitution (i.e. the social contract) • 2) To say otherwise would mean the Congress is the law of the land, not the Constitution • 3) That would mean that the representatives have more power than the people • -But can’t the legislature be its own judge of constitutionality? • -That would allow the legislature to substitute its will for the people’s • -The courts were designed to be an intermediary of the people to ensure that the legislature does not exceed its authority • -Only the courts are qualified to interpret the law – so it is the Supreme Court’s job to discern the Constitution’s meaning, discern a law’s meaning, decide if there is a conflict, and then invalidate a law if it conflicts with the constitution (so the peoples will exceeds their representatives) • -This does not mean that the judiciary is superior to the legislature – just that the people’s will (as expressed in the Constitution) is superior to the legislature’s will (as expressed in statute) • -If the court is to act as an effective bulwark against legislative encroachment then lifetime tenure is a must • -The judiciary also acts to temper the temporary excesses of the majority (and the endangerment of minority rights) • -Of course, the people have the right to write a new constitution if it is inconsistent with their happiness” • -But if the people, on a whim, act against the constitution – then the judiciary should defend the document, even though it may be difficult to oppose popular legislation • -The judiciary will act as a protector of minority interests • -The court will mitigate laws that arise • -The legislature will modify unjust laws even before passing them because they will want to avoid judicial action – this helps create a better character of the government • -The integrity and moderation of the courts should be encouraged because you never know when you could be the victim of injustice

3. Number 51 -- Madison • Section #2 • Each branch has the necessary constitutional tools and personal motives to resist encroachments. • “ambition must be made to counteract ambition”The personal interests of members must be linked to constitutional rights of the office. • This doesn’t say great things about human nature—“But what is government itself but the greatest of all reflections on human nature?”But politicians are not angels so there is a problem: you must first enable the government to control the governed, and in the next place, force it to control itself.Dependency on the people is, no doubt, the primary control on the government. But experience has taught mankind that auxiliary precautions are necessary.

4. Number 51 -- Madison • Section #3 • Not possible to give each branch equal power -- In republican government, the legislative authority necessarily predominates.—so we break up the Congress into two pieces – And those two pieces have different constituencies and powersBut we may need to do more: presidential veto • may be used too rarely or used too much – further checks on the legislature may be necessary

5. Number 51 -- Madison • Section #4 • In a traditional republic, power goes into one government- that is broken into branches – we are a “compound republic” because power is first broken into state and federal levels – and then broken into branches – so we have a “double security”

6. Number 51 -- Madison • Section #5 • Equally important to guard against the injustice which may be inflicted by majorities against minorities. Two possible solutions: • Create a will outside of the majority (ie a king or other nonelected leader) – • Problem: could back the majority anyway, or turn against the majority and minority • Or create such a diverse society that no permanent majority emerges

7. Number 51 -- Madison Section #6 • under the Constitution, our society is large enough that it is divided into many groups of people who hold different views and have different interests. This makes it very difficult for one group to dominate or threaten the minority groups. -- but if we rely on smaller state governments (like under the Articles) there is the possibility that a majority could emerge to oppress – so big government (like the federal government under the constitution) is best at maintaining liberty.