The Federalist Papers and the Judiciary’s Role in Government

In recent election cycles, the courts have taken a bad rap.  They have been identified as elitist, activist, unpopular and even distrusted by the founding fathers.  I reminded myself it had been some time since I’d actually read the Constitution.  I decided to go “to the source” and re-read our nation’s original documents, to address at least one of the above issues, the opinions of the founding fathers about the  judicial system.  I will let the documents speak for themselves:

1)  In declaring independence from England, what complaint is made in the Declaration of Independence, signed July 4, 1776, about the relationship of King George and the judiciary?  “He [King George] has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.”

2)  How did the Constitution, adopted September 17, 1787, handle the separation of the powers of the legislative, executive and judicial branches of government?  The Constitution divides the powers of  government in separate articles as follows:

“Article I, Sec. 1:  All legislative Powers herein granted shall be vested in a Congress of the United States…

Article II, Sec. 1:  The executive Power shall be vested in a President of the United States of America…

Article III, Sec. 1:  The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. …”

3)  What are the Federalist Papers and why do we care?  They are a series of 85 essays, originally titled  Federalist: a Collection of Essays Written in Favor of the New Constitutionpublished in 1788 to gain support for the passage of the Constitution. written to promote the ratification of the Constitution.  They have also had a significant impact on U.S. Supreme Court interpretations of the Constitution.

4)  Who authored the Federalist Papers?  Alexander Hamilton, James Madison and John Jay.  Among other roles in the founding of the United States, Alexander Hamilton served as a New York delegate to the Constitutional Convention; James Madison was the fourth President of the United States, was instrumental in drafting the Constitution and was the author of the Bill of Rights; John Jay was the first Chief Justice of the United States.

5)  Do the Federalist Papers address the role of the judiciary and the separation of powers?  Yes.   Federalist # 78 focuses on the relationship between and among the branches of government and the role of the judiciary as it relates to the interpretation of the Constitution.

6)  Why did the Constitution provide for a separation of powers among the three branches of government?   In the Federalist Papers, Alexander Hamilton explains …”there is no liberty, if the power of judging be not separated from the legislative and executive powers.” “The complete independence of the courts of justice is clearly essential in a limited Constitution…. [the courts have the duty] 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.

6)  Do the Federalist Papers describe the role of the judiciary in interpreting the Constitution?  Yes.  Federalist #78 explains that 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.”  “…under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes.”

7)  Do the Federalist Papers express a distrust for the judicial branch?  No.  While the Federalist #78 acknowledges 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.”

 8)  Why did the Federalist #78 describe the judicial branch of government as the weakest of the three branches?  The Executive branch not only “dispenses the honors, but holds the sword of the community.”  The legislature “commands the purse”.  The judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society…”

9)  What is the purpose of the provision in  Article III, Sec. 1 of the Constitution that Judges “shall hold their Offices during good Behaviour [essentially lifetime appointments]?  The Federalist Papers #78 explains that: “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.

10)  Did the founding fathers consider one branch of government to be superior to others?  No.  The Constitution was written to put the interests of the people, not the interests of government, first. The colonies declared their independence from England because of the tyranny of King George.  The separation and balance of powers is for the protection of people, rather than for some other purpose.  Federalist Papers #78 is clear that the Constitution does not  “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. Further, 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.

11)  What other essays included in the Federalist Papers are of significance in determining the view of the founding fathers concerning the role of the judiciary?  Essay #1 describes the goal of the Constitution as focused on “whether societies of men are really capable or not of establishing good government from reflection and choice.” He and his co-authors along with other leaders including George Washington, believed that the Constitution represented a unique and important change in, and improvement over, prior forms of government.  Essays 4 and 33 deal with the Supremacy Clause set forth in Article V of the Constitution, but those are matters for another day!

Why haven’t I addressed the other issues raised concerning perceived flaws in the judiciary and individual judges?  It is reasonable to believe that people of good will can have differing opinions about individual judges, individual decisions and frailties in any arm of government.  I have no desire to enter that debate.  The humanity and imperfections of each of us individually and collectively are not up for debate.  But what I think is important to recognize is that the Constitutional framework was designed to include a separation of powers of the three arms of government because the founding fathers believed that it was in the best interests of the people to do so. The courts were not considered inferior or superior to the other branches of government.  The courts were, however, considered essential to the creation and fulfillment of our system of Democracy.


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