FEDERALISTS V ANTI-FEDERALISTS PART TWELVE: The Judiciary: “Least Dangerous” Branch or Most “Repugnant?”


The Federalists saw the third Branch of the Federal Government, the Judiciary, as the cement which would work to fill the cracks of the governmental edifice under construction…

Wrote Madison in Federalist #37“All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” He maintained that there is an “unavoidable inaccuracy” in law-making since “no language is so copious as to supply words and phrases for every complex idea.”

Although Hamilton believed “in the right of the People to alter or abolish the established Constitution whenever they find it inconsistent with their happiness,” he asserted in Federalist #78 that, nevertheless… “it is not to be inferred from this principle that the Representatives of the People, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions.”

It is the Nation’s judges who must guard against the “ill humors” which sometimes sweep the people along temporarily, but only after “dangerous innovations in the government, and serious oppressions of the minor party in the community.”

Hamilton also contended that the knowledge that judges will strike down their bad laws “operates as a check upon the Legislative body in passing them” [similar to how Hamilton felt that the threat of Veto silently works].

Hamilton had a couple of reasons for declaring in Federalist #78 that, of the three Branches of Government, “the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution”… First, the Judiciary “must ultimately depend upon the aid of the Executive arm even for the efficacy of its judgments.” And secondly, the Judiciary can never attack with success either of the other two” Branches.

What gets neglected when people quote Hamilton’s reassurance about “the least dangerous” Branch is that he goes on to warn that we “would have everything to fear from its [the Judiciary’s] union with either of the other departments.” In other words, the politicalization of the Judiciary Branch would destroy the proper check and balances of the Republican government set-up by the Constitution.

The Anti-Federalists were not close to being as sanguine toward the proposed Judiciary Branch as the Federalists were…

In his Essay Sixteen of 10 April 1788, Brutus demonstrated that he understood the wisdom behind making the position of the judge a non-elective one, due to the fact that judges must possess enough independence to “maintain firmness and steadiness in their decisions.” However, this means that no Judge, once in place, is amendable to the will of the People. This situation being “repugnant to the principles of a free government,” is unacceptable to Brutus. Even the Judiciary, he felt, should be held accountable for its conduct. He proposed that, ultimately, the decisions of the Judiciary Branch should be reviewable by representatives of the People.

“I suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men who depend upon the people for their places; and so also should ALL great officers of the State, who are not amenable to some superior officers in the State.” It’s as if he’s trying to suggest that the Constitution should establish an elected Court Of Impeachment.

Brutus also hints that perhaps, even if none of the other judges are elected, the Justices of the Supreme Court ought to be, therefore injecting accountability to the people into the top of the Branch, which will filter its way down in the form of review of the verdicts of the lower courts.

In “Number Fifteen” (20 March 1788), Brutus observes that, in England, judges’ determinations are subject to correction by the House Of Lords. But the American Constitution has no such provision for correcting the errors of the Judicial Branch. In fact, he said, the powers of the Judiciary under the proposed U.S. Constitution “transcends any power before given to a judicial by an free government under heaven.”

Hamilton, writing in Federalist #78, was adamant that there be no direct democratic control of the Judiciary, for “Nothing can contribute so much its firmness and independence as permanency in office.” In Federalist #79, he argues that the power to remove judges from office “would be more liable to abuse than calculated to answer any good purpose.” And as far as removing judges when they grow too old for office, Hamilton contends that it is impossible to judge when someone’s mental capacities have deteriorated beyond some acceptable level… “The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. And attempt to fix the boundary between the regions of ability and inability would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good.”

The Commonwealth Of Virginia also recognized the importance of the independence of the Judiciary, and –recognizing that control over pay was just as powerful as control over position– proposed on 27 June 1788 that “the salary of a Judge shall not be increase or diminish during his continuance in office, otherwise than by general regulations of salary.”

In Federalist #81, Hamilton lets it be known he abhors the idea of politicians having the final word on their own passed laws. In elected bodies, “the pestitential breath of faction may poison the fountains of Justice,” where… “the habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.”

Legislators possess a different skillset from judges. The members of the Legislature, declared Hamilton, “will rarely be chosen with a view to those qualifications which fit men for the stations of judges.” And he labels it an “absurdity” to subject the “the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge.”

Brutus complains in “Number Fifteen” (20 March 1788) that “the only clause in the Constitution which provides for the removal of judges” is the one about removing them via the process of Impeachment for the crimes of… treason, bribery, or other high crimes and misdemeanors.” Unfortunately, in his view, for the American people, “errors in judgment or want of capacity to discharge the duties of the office can never be supposed to be included in these words, ‘high crimes and misdemeanors’.”

— — —

Brutus saw the unelected, virtually untouchable Judiciary, as one of the greatest threats to State sovereignty in the Federation. “Perhaps nothing could have been better conceived to facilitate the abolition of the State governments,” he wrote in his Number Fifteen of 20 March 1788, “than the constitution of the judicial.” They will be able… to extend the limits of the General Government gradually, and by insensible degrees.” In his Number Eleven (31 January 1788), Brutus predicted that… “the Judicial power of the United States will lean strongly in favor of the General Government and will give such an explanation to the Constitution as will favor an extension of its jurisdiction.”

The Pennsylvania Minority Opinion On Ratification, on 18 December 1787, agreed, proclaiming that such a Judiciary as proposed in the Constitution “would affect a consolidation of the States under one government.”

In Number Fifteen (20 March 1788), Brutus also prophesied that march toward annihilation of any real State power would be as silent as it was unceasing, for the decisions of the Court System… “will commonly take place in cases which arise between individuals with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.”


The Federalists were in agreement that Courts of the General Government must be superior to the Courts of the individual States, otherwise, as Hamilton said in Federalist #22, the “laws of the whole” could be “contravened” by the “laws of the parts.”

In Federalist #80, Hamilton declared the necessity for “uniformity in the interpretation of the National laws.”

“Thirteen independent courts of final jurisdiction over the same cases, arising upon the same laws, is a hydra in Government from which nothing but contradiction and confusion can proceed.”

At the time the Ratification Debates, the Constitution, according to Hamilton’s interpretation, “directly contemplates the cognizance of disputes between the citizens of the same State” only in one situation… when two same-State citizens claim lands under a land-grant offered by a second State.

However, in Federalist #82, Hamilton stresses that “the National and State [judicial] systems are to be regarded as one whole.” The National courts will have “concurrent jurisdiction” with State courts in all cases arising under the laws of the Union “where it was not expressly prohibited.” Hamilton said that Supreme Court of the General Government must have final appellate jurisdiction in such cases, or else “the local courts must be excluded from a concurrent jurisdiction in matters of national concern.” The correct path of appeal from the State court system will “naturally lie to that tribunal which is destined to unite and assimilate the principles of National justice and the rules of National decisions.”

“I perceive at present,” Hamilton continues, “no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals.” In most cases, he imagined that appeals would go “from the State courts to the District Courts of the Union.” Basically, then, all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union.”

Contradicting his own later views upon the subject, Madison in Federalist #44, said a State could not be allowed to hold a national law or treaty invalid because it violated State law or State constitutional rules. If so, the U.S. Government would be unsecurely “founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts.”


One of the loudest cries of alarm sounded by Anti-Federalists was that Constitution proposed by the Federalists did not provide adequate guarantees that the right to trial by jury would not be infringed.

One of the main problems stemmed from the nature of appeals process indicated by the Constitution. If appeals from State courts could be made to the Federal court system, then that would mean that decisions determined by a jury of one’s peers could be overturned by a judge or small panel of judges in a different part of the country. This would produce, in effect, a verdict rendered WITHOUT a jury.

The Pennsylvania Minority Opinion On Ratification, issued 18 December 1787, warned that the American system of justice could be… “drawn into the absurdity of calling and swearing juries merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless.”

Federalist James Wilson attempted to elucidate the reasons why the members of the Constitutional Convention remained silent in regards to the protection of the right to a trial by jury for CIVIL cases… “The cases open to trial by jury differed in the different States,” Wilson explained in a speech delivered 6 October 1787. Nevertheless, Wilson felt the Constitution “effectually barred” Government oppression through the Courts by declaring that in all CRIMINAL cases, the trial by jury shall be preserved.

The Virginia Convention proposed additions to the Constitution on 27 June 1788 which included the demand that, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and is to remain sacred and inviolable.”

The Massachusetts ratification convention proposed on 7 February 1788 that a guarantee should be added to the Constitution assuring that, in most cases, no person may be sentenced to “infamous punishment or loss of life” until “he be first indicted by a Grand Jury.”

Hamilton attempted in Federalist #81 to defend the process of appeal from State to Federal Courts. However, in one of his rare fumbles, he fails to make any coherent or convincing argument. In fact, by declaring that is impossible to separate appeals based on legal procedure from those based upon the facts of the case, he seems to concede possibility of the Federal Courts making the decisions of local juries superfluous.

That’s not to say Hamilton was against the concept of trial by jury. Quite the contrary. Hamilton, ever practical, liked juries because they were both temporary and numerous– and thus more difficult to successfully bribe.


The Virginia Convention also demanded that… “in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and to be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage [vicinity], without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces); nor can he be compelled to give evidence against himself.” Furthermore judicial trials and decisions must occur “promptly and without delay.”


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