Federalist 78: The Weakest Branch?


“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” —Alexander Hamilton

In light of the death of Ruth Bader Ginsberg, all eyes have again turned to the Supreme Court. According to most Americans, the Court’s power is unquestioned and final. Americans understand the Supreme Court to be the “final court of review”.

There is no higher power to appeal to, right? Votes for the president are weightier because of the potential Supreme Court Justices who may be appointed.

Here’s a quote that sums up how people view the Supreme Court: “While Supreme Court nominations may not be the most headline-grabbing stories that come out of a presidency, they probably should be. With Supreme Court justices serving for life and having significant power in interpreting laws that affect our daily lives, the importance of Court appointments cannot be overstated.”

Wait…


Didn’t this article start with a Hamilton quote that said the judiciary is the weakest branch? Am I talking about the same branch of government because by the looks of it, I can’t possibly be.

One describes a feeble, unequipped branch, whose power rests solely on the other two branches while the other describes a branch whose power is expansive, era-defining and forces the respect and acquiescence of the other two branches.

Ah yes, you all know the answer to this question. We are indeed…shamefully…talking about the same branch of government.

Friends, no branch of government should ever be described in the way I just described the Supreme Court. NO BRANCH.

Which is why, in today’s blog post, I felt compelled to set the record straight. I’ll step through four basic assumptions that Hamilton made about the Court in his Federalist paper entitled The Judiciary Department. This particular paper is relatively long and chocked full of information, so today’s article is part one.

One: The Court’s Power Is Only Valid if Those Serving Are of Good Behavior


“According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State.”

So, Hamilton starts out by stating a basic premise. Judges and Justices must comport themselves appropriately and with good behavior.

I find, as I study the founder’s understanding of the courts, a slight contradiction in their overall beliefs about government. They set up the government with the keen and overt understanding that man is flawed and hungry for power. However, both Hamilton and Madison treat those on the court with less scrutiny and suspicion of potential wrong doing. Perhaps this is because the courts were initially made so weak. They may have believed that even ambitious men on the courts couldn’t overcome the shortfalls of judicial power.

But, I digress. My point here is this: the court is the one area that I believe the founders, or more specifically Hamilton and Madison, overlooked and misjudged (pun intended 😉). If these two men were to magically appear to America today, the immense power of the courts would likely be the most astounding to them.

Hamilton continues: “Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Notice here that Hamilton is not overly concerned about the potential of abuse of power by the courts, but rather by an over zealous and powerful Congress. I’ve said it many times, Congress was created to be the most important branch and was, for the founders, the most dangerous branch.

Ironically, it now comports itself as if it is now the weakest branch, but that’s a topic for another time.

Two: The Judiciary Is The Least Dangerous Branch to the Constitution


I’ve already said this a few times, but here are Hamilton’s words: “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.”

You get that? From the nature of its functions, it has the least potential to ever threaten the Constitution and our rights. In other words, its functions are limited and crippled. By crippled I mean, the court, very literally, has no enforcement agent for its power. It could rule something over and over and nothing ever change if the other branches chose to simply ignore the court ruling. Think about it. What would the nine Supreme Court Justices do if they ruled on a issue and the executive, legislative and state governments simply said no? They couldn’t do anything. Nothing at all. You see, their power is all in perception. Because the American people perceive them to be powerful, they are powerful.

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Here, Hamilton details the powers delegated to each branch. Congress of course controls the money, which automatically gives it tremendous power. But Congress also makes the “rules” or laws for the country. Congress is given an executive branch whose sole Constitutional duty is to make sure that these laws are faithfully executed. (Again, contrast this to the courts who are not given any branch with the sole responsibility of seeing that their rulings are applied and upheld) So, the executive holds the sword over society, giving power to the laws written by Congress.

The courts? They have no influence over the sword or purse and ultimately have no force or will of their own. They must merely hope that the executive will see to it that their rulings are upheld. So, their power is ultimately dependent on the acquiescence of the other branches.

Three: The Court Can’t Threaten Liberty As Long As Its Power Is Distinct From The Other Two Branches


Hamilton proceeds to say that: “This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.”

This statement alone should underscore for you just how minor the role of the courts was initially created to be.

“It equally proves, 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;”

This is indeed a fascinating statement. Hamilton acknowledges, that, since the court’s power to take and apply existing law to specific and individual cases, may at some points be abused—as all power usually is—if the courts do end up abusing their power, the effects will only be minimal and will only affect the parties involved in that specific case. Hamilton argues that the “general liberty” of the people can never be endangered by the Court. Fascinating, right? A far cry from the expansive reach, power and influence of a Court ruling today.

But, Hamilton does admit that in a certain case, the court’s power could be expansive: “I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ [this is a famous quote from Montesquieu] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches;”

In other words, if the power of judging is ever joined with either of the other two powers, that of lawmaking and of executing the laws, expansive abuse is the result. Indeed, he is correct in that liberty does have nothing to fear from the judiciary alone. This is something I wish more Americans would grab hold of and understand. The courts truly have little to no power. They are indeed feeble.

And yet, most Americans treat court rulings as if they hold the force of law… as if they are law. Therefore, our elected officials treat court rulings as if they are law. This type of treatment is called legitimacy and is perhaps the most important attribute that the courts desire to coddle and protect. You see, without legitimacy, the courts have nothing. Their rulings mean nothing if those around them refuse to legitimize them or treat them with respect and honor. Their rulings mean nothing if the other branches of government simply shrug and say, “nice opinion” but do nothing to make sure rulings are upheld and enforced.

So, you can see why Hamilton was so concerned about how to preserve, protect and even encourage the power of the courts against the power of the other two branches.

Four: All Laws Contrary to the Constitution Are Invalid and Should Be Declared Invalid


At this point, Hamilton posits an understanding of the courts that, at the time and according to the Constitution, was not settled or fully agreed upon. However, again, given his understanding of the feeble power of the courts, this claim, makes sense. It especially makes sense according to how we perceive and understand the courts today.

This next section of quotes by Hamilton are more a commentary on the legislature than the courts. He first establishes the understanding of the U.S. government as a limited government. This understanding of our government is critical and underscores why it’s more important to pay attention to whether or not the the government has violated its enumerated powers rather than violated rights. It’s a given that government has violated rights if it violates its enumerated powers. Hamilton firmly establishes this understanding in the quote below.

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be 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.


There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Hamilton proceeds to justify why he believes, despite no clear Constitutional directive for such power, the courts should be able to call out, and invalidate any legislative act that does not conform to the Constitution. He says:

“Some perplexity respecting the rights 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. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.”

Hamilton held the belief that the courts, given their weak and feeble state, should be able to call out the federal legislature for acts that were outside of their enumerated powers. Pay attention here, he did not say that the Court should be able to interpret, re-interpret and re-write laws but merely block and invalidate an unconstitutional law, leaving Congress to adjust for themselves. Visit my blog next week to learn more about this.

Conclusion

The Constitution clearly makes the judiciary the weakest branch. Hamilton underscores this weakness in his Federalist 78. And yet, today, we find the nation losing her head over the possibility of one Supreme Court Justice.


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Friends, we have it all wrong and it’s only gotten worse and worse with time. The Court’s power has grown exponentially with no one and nothing to check it. The Court has essentially become the Constitution, while precedent and Court rulings take priority over the Constitution itself.

And the worst part is this: the other two branches are never motivated to counter-act the Court’s ambition—as predicted by Madison—because the Court, having taken on the role of the Constitution, continues to bequeath upon the other two branches more and more power… far exceeding their Constitutional limits. But, as long as the Court approves, the people acquiesce and assume that the power is legitimate and final.

Friends, I’m here to tell you that just because a Court says something is legitimate and final does not mean the ruling is legitimate and final…or Constitutional.

Need I remind you who ultimately has the final say?

You and I.

Because if you and I disapprove of a Court ruling, the two branches who could put the force of the executive behind that ruling, won’t.

It’s about time that we begin to demand for not only the executive and legislative branches to follow the Constitution, but also the Court.

Otherwise, we may as well kiss the Constitution goodbye.

The Liberty Belle

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