Federalist No. 78 was an essay by Alexander Hamilton In which, he expressly argued that among the three propose branches of government, Judiciary was the weakest. With accordance to the time, indeed he was right. Yet, the perspective wearied from person to person. If we are to put today’s judiciary and its power with respect to governance, we will find Hamilton change his opinion otherwise. One needs to understand where Hamilton’s idea about the judiciary is rooted from and upon doing so, we need to analyses the very evolution of judiciary that has led to one wondering if Hamilton is still right or are the things different now.
In Federalist No. 78, Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." One need to understand that during the time, Hamilton wanted a branch of governance which would act as a protection against abuse of power by Congress. He further discusses the power of judicial review
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and argues that the federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency. The idea of "danger" and "strength" seem to be converged in a unique manner.
Hamilton felt it is the least dangerous of the three branches of government because it does not make the laws as the legislative branch does; it simply interprets the laws that have been passed by the legislative branch and that have been approved by the executive branch. However, law-making process was not as transparent as it is now. This was because congressmen can be pressured by their constituents, lobbyists, and powerful people to write laws or vote for laws that are against the dictates of their consciences. Or they may wish to include in bills things that will enable them or their constituents. At any rate, there may seem to be more opportunities for corruption in both the legislative branch and the executive branch in lawmaking than in the judicial branch's interpretation of these
laws. Throughout the history of the nation, the Supreme Court and the judicial branch have been responsible for some of the most powerful and pressing issues have been ruled on by the judicial branch. With the passage of time, as the power of executives grew, Judiciary also grew its power. The start of the nation's Civil War was brought on by the Dred Scott decision, racial segregation practices were both upheld and overturned by the court in Plessy v. Ferguson and Brown vs. Board of Education. The case of Roe v. Wade helped to define the critical issue of abortion, creating a litmus test that has been in American politics for the last 40 years. Some argue that it all began with the passage of the Fourteenth Amendment in 1868 that would herald significant changes including in a large expansion of the scope of the Supreme Court’s power. Finally, in the ultimate act of definition of power, the judicial branch decided the outcome of a presidential election in the 2000 case Gore v. Bush. Without a doubt the branch of Judiciary has become a force that it was initially meant to be. However if Hamilton was to see these changes he wouldn’t be so worried. In fact, being a lawyer himself he would have loved to see the branch becoming a beacon of strength and faith for the average American. He would have seen that the Court has become powerful for right reasons. Because over the last several years Congress has been less productive than any other period in its history, shifting major decisions onto the Supreme Court, a role it has cautiously been force to accept. And it does so along with maintaining its institutional legitimacy.
In Federalist 78, Alexander Hamilton argued that the Judicial Branch is the “least dangerous to the political rights of the Constitution" and that it is “beyond comparison the weakest of the three departments of power” since it has “neither force nor will, but merely judgment.” [*] While it is true that Hamilton wrote the Federalist Papers as propaganda to garner support for the Constitution by convincing New Yorkers that it would not take away their rights and liberties, it is also true that Article III of the Constitution was deliberately vague about the powers of the Judicial Branch to allow future generations to decide what exactly those powers should be. In the 1803 case of Marbury v. Madison, the Supreme Court, led by Chief Justice John Marshall, established the Court’s power of judicial review. However, as Jill Lepore, Harvard professor of American History, argued, “This was such an astonishing thing to do that the Court didn’t declare another federal law unconstitutional for fifty-four years” after declaring the Judicial Act of 1789 unconstitutional in Marbury v. Madison. [*Jill Lepore] Alexander Hamilton was incorrect in his assertion that the Judicial Branch is the least dangerous to political rights and the weakest of the three government branches because judicial review has made the Supreme Court more powerful than he had anticipated. From 1803 to today, the controversial practice of judicial activism in the Supreme Court has grown—as exemplified by the differing decisions in Minor v. Happersett and United States v. Virginia—which, in effect, has increased the power of the Supreme Court to boundaries beyond those that Alexander Hamilton stated in Federalist 78.
Hamilton is backing the judiciary branch as set up in the Constitution. He reiterates what is stated in Article III Section 1 of the Constitution that “all judges who may be appointed by the United States are to hold their offices during good behavior;” (Hamilton.Jay.Madison 99-100) and that he believes it to be “one of the most valuable of the modern improvements in the practice of government.” (Hamilton.Jay.Madison 100)
The Federalist paper # 68 was written with the intent of explaining the process by which we elect the President of the United States, also the views of the people in regards to the election of the President, as well as the House of Representative’s responsibility in electing the President.
Federalist No. 10 and No. 51 were a series of essays written by James Madison, arguing for the ratification of the U.S Constitution. Before the ratification, the Articles of Confederation only bounded the thirteen colonies, uniting them as military alliance rather than a cohesive government. The central government lacked authority; the national government could not collect taxes or force states to comply with their laws. The lack of a strong central government made it difficult for states to operate effectively as one single nation. The state legislatures had too much power under the Articles, so Madison’s goal was to restrain the power of the states. Madison, Jay, and Hamilton, wrote the Federalist Papers to encourage the citizens to support the ratification of the Constitution. Federalist No.10 and No. 51 are highly regarded in comparison to the rest of the essays. Federalist No.10 is the introduction to Madison’s contributions of the series. Madison addresses the question of "factions" and disastrous effect to our liberties. Madison argues that a strong and large republic would best control the effects of factions, rather than a smaller republic. Madison also argues for representation in government rather than direct democracy. With delegates, the passions of the people would-be filtered, and only the ideas that are good for the majority of the people would prevail. Madison expands his argument in Federalist No.10 by having three separate branches of government, the judicial, legislative, and executive. Each branch would be independent and have equal power. Madison also notes that people are fundamentally flawed, so government needs to be able to control their passions. Madison states, “If men were angels, no government would b...
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself,” are words written by James Madison in The Federalist Papers No. 51. The Federalist Paper No. 51 is one of several documents that compose the Federalist Papers, a series of essays written by James Madison, John Jay, and Alexander Hamilton promoting the ratification of the Constitution. In this particular paper, several principles are used as arguments for ratification. Specifically, a main argument discussed is the means this government would have to self-regulate itself. Following the sentence quoted above is, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The auxiliary precautions Madison refers to is one of the many principles of our government that is still in action today, a system of checks and balances. Such a principle was born from the Constitution as a result of the existence of three branches and their division of powers.
The United States of America is one of the most powerful nation-states in the world today. The framers of the American Constitution spent a great deal of time and effort into making sure this power wasn’t too centralized in one aspect of the government. They created three branches of government to help maintain a checks and balance system. In this paper I will discuss these three branches, the legislative, the executive, and the judicial, for both the state and federal level.
Madison begins perhaps the most famous of the Federalist papers by stating that one of the strongest arguments in favor of the Constitution is the fact that it establishes a government capable of controlling the violence and damage caused by factions. Madison defines that factions are groups of people who gather together to protect and promote their special economic interests and political opinions. Although these factions are at odds with each other, they frequently work against the public interests, and infringe upon the rights of others.
"This inquiry will naturally divide itself into three branches- the objects to be provided for by a federal government, the quantity of power necessary to the accomplishment of those objects, the persons whom that power ought to operate," writes Alexander Hamilton in the Federalist #23 in reference to the separation of powers. The basic concept here is the idea of the federal government being divided into three separate branches that would balance excessive democracy through a system of checks on each other. The three branches, respectively known as the legislature (Article I), the executive (Article II), and the judiciary (Article III), were designed to entice the opponents of the Co...
In conclusion, it seems clear to me that the Legislative Branch holds huge power, and in my opinion has the most power of the three. No other branch seems to screams out “We the people” like this one. No other branch offers so many checks and balances to the other branches. This is the branch that writes and passes our laws, can supersede even a presidential veto if it has enough unity from its members within. Congress decides how federal money will be spent, approves presidential appointments, and impeach the President if deemed appropriately within.
In William Hudson’s book, American Democracy in Peril, he writes about different “challenges” that play a vital role in shaping the future of the United States. One is the problem of the “imperial judiciary”. Hudson defines its as that the justice system in the United States has become so powerful that it is answering and deciding upon important policy questions, questions that probably should be answered by our democratic legislatures. Instead of having debates in which everyone’s voices are heard and are considered in final decision-making process, a democratic-like process; we have a single judge or a small group of judges making decisions that effect millions of citizens, an “undemocratic” process. Hudson personally believes the current state of judicialized politics is harming policy decisions in Americans. According to him, the judicial branch is the “least democratic branch”, and ...
It has been said that the U.S. Constitution is deliberately inefficient because of it forces the other branches to check the powers eliminating one becoming more dominant than the other two. The three branches of government are legislative, executive, and judicial. The legislative branch enacts federal laws on a national level in Congress, which is comprised of the House of Representatives and the Senate. The executive bran...
The life of every American citizen, whether they realize it or not, is influenced by one entity--the United States Supreme Court. This part of government ensures that the freedoms of the American people are protected by checking the laws that are passed by Congress and the actions taken by the President. While the judicial branch may have developed later than its counterparts, many of the powers the Supreme Court exercises required years of deliberation to perfect. In the early years of the Supreme Court, one man’s judgement influenced the powers of the court systems for years to come. John Marshall was the chief justice of the Supreme Court from 1801 to 1835, and as the only lasting Federalist influence in a newly Democratic-Republican government, he and his fellow justices sought to perpetuate their Federalist principles in the United States’ court system. In one of the most memorable court cases of all time--the case of Marbury v. Madison-- Marshall established the idea of judicial review and strengthened the power of the judicial branch in the government. Abiding by his Federalist ideals, Marshall decided cases that would explicitly limit the power of the state government and broaden the strengths of the national government. Lastly, the Marshall Court was infamous for determining the results of cases that dealt with the interpretation of the Constitution and the importance of contracts in American society. The Marshall Court, over the span of a mere three decades, managed to influence the life of every American citizen even to this day by impacting the development of the judicial branch, establishing a boundary between the state and national government, and making declarations on the sanctity of contracts ("The Marshall Court"...
Judiciary as the Most Powerful Branch of Government In answering this question I will first paint a picture of the power that the court holds, and decide whether this is governmental power. Then I will outline the balances that the court must maintain in its decision making and therefore the checks on its actions as an institution that governs America. "Scarcely any political question arises that is not resolved sooner or later into a judicial question." (Alexis de Tocqueville Democracy in America) If we take Tocqueville on his word then the American Judiciary truly is in a powerful position.
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012