Alexander Hamilton on Judicial Independence
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Alexander Hamilton on Judicial Independence


The story behind Hamilton’s writing of the
Federalist Papers is just amazing. He was a practicing lawyer at the time. He’d spend all day at the office, litigating
cases, defending clients, and he’d come home and dash off a couple of Federalist Papers. Federalist 78 was Alexander Hamilton’s famous
defense that proposed a federal judiciary. His argument was that it would be the branch
that was least dangerous to the rights of the people. He was responding to the argument made by
a critic of the federal judiciary who wrote under the pen name Brutus. Brutus argued, “they have made the judges
independent in the fullest sense of the word. There is no power above them to control any
of their decisions, there is no authority that can remove them, and they cannot be controlled
by the laws of the legislature. In short, they are independent of the people,
of the legislature, and of every power under heaven.” It’s not hard to find echoes of the arguments
we hear today about the Supreme Court. Modern criticism of the Court for going too
far in asserting judicial supremacy, for not respecting the other branches or respecting
federalism, and that’s what Hamilton was responding to when he defended the judiciary,
defended its power of judicial review, and defended life tenure. Hamilton isn’t advocating that we should
give independence to judges simply to free them from the constraints of law and government,
rather he’s giving them independence in a very specific context, in the context of
the other branches of government. So, the most obvious way that judicial independence
helps to check the other branches is that it prevents Congress especially, and also
the executive branch, from overrunning the judiciary, from forcing their hand, and it
gives a judge the space to use his best judgment in accordance with the Code, the legal code,
and the precedence to decide the cases faithfully under the Constitution and the laws. The judge exercises discretion in a very limited
way. After the Constitution, the statutes, the
regulations, and the precedents have all been evaluated and brought to bear on the case,
there might be the small measure of judgment that the Court needs to exercise. But what’s important is that up to that
point, the judge is faithfully reading the laws that bind him, so that he’s exercising
discretion only in this very limited way. And on top of that, Hamilton recognized that
the best judges would be produced by a lifetime of study, of study of the laws, the legal
code, the precedence, and all the things a judge needs to do in order to faithfully execute
his office. That was the purpose of judicial independence,
the idea that these judges would need to be protected from the other branches or else
they wouldn’t be able to do their job correctly and they wouldn’t have the incentive to
leave practice and serve in government. When the Court is called upon more and more
to decide evermore controversial issues, social issues, cultural issues, issues of competing
rights, to decide these cases for society, sometimes once and for all, it’s extremely
important for the Court to exercise the self-restraint that Hamilton promised it would in Federalist
78. Hamilton had an incredibly systematic mind
and a clear mind. It always in the end came back down to the
government as a whole and finding a way to ensure that the system as a whole hangs together
and succeeds. Hamilton is pressing the case for constitutionalism.

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