As an example he considers a situation where the public for some reason desires an unconstitutional law and the legislature obliges. In such a case, it is the province of the courts to liquidate and fix their meaning and operation; so far as they can by any fair construction be reconciled to each other; reason and law conspire to dictate that this should be done.
With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union.
This supreme controlling power should be in the choice of the people, or else you establish an authority independent, and not amenable at all, which is repugnant to the principles of a free government. Those concerned about this problem mentioned that there was no safeguard in the Constitution to prevent this.
And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. Hence the English nation gained a great point, in favor of liberty, when they obtained the appointment of the judge, during good behavior.
I mean, so long as the judiciary remains truly distinct from both the legislative and executive.
It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
It was not until that the Supreme Court declared that it had not only the duty but it was their province to decide unconstitutionality, called judicial review.
But this is mere rule of construction, not derived from any positive law but from the nature and reason of the thing. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, 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.
Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power.
Without this, all the reservations of particular rights or privileges would amount to nothing. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.
The partition of the judicial authority between different courts and their relations to each other. Antifederalist Paper THE POWER OF THE JUDICIARY (PART 1) Part one is taken from the first part of the “Brutus’s” 15th essay of The New-York Journal on March 20, ; Part two is part one of his 16th of the New York Journal of April 10, Interestingly this and all remaining papers have the same date.
This paper deals exclusively with the rationale for their tenure which is they hold their offices during good behavior, that is for life. In this essay Hamilton discussed the question of whether the Supreme Court should have the authority to declare acts of Congress null and void because, in the Court's opinion, they violated the Constitution.
Federalist No. 78 (Hamilton) Section XII: Judiciary: Federalist No. 79 (Hamilton) Section XII: Judiciary: Federalist No. 80 (Hamilton). Home Study Guides The Federalist Papers Essay 78 Summary and Analysis The Federalist Papers by Alexander Hamilton, James Madison, John Jay.
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A collection of eighty-five essays by Alexander Hamilton (–), James Madison (–), and John Jay (–) that explain the philosophy and defend the advantages of the U.S. Constitution. The essays that constitute The Federalist Papers were published in various New York.Federalist essay number 78