This is the fifth and final article in a series on “The Struggle for Ratification: Advocates and Opponents Debate Judicial Review.” You can read Part 1 HERE, Part 2 HERE, Part 3 HERE, and Part 4 HERE.

In Federalist #78 and Federalist #81, Alexander Hamilton sought to provide a point-by-point rejoinder to Brutus’ charges. I covered the first six points in Part 3 and Part 4 of this series. This will round out Hamilton’s response to Brutus.

The Threat of Impeachment

Hamilton contended, “the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom.” Occasional “misconstructions and contraventions of the will of the legislature may now and then happen,” but these would not be serious or drastically “affect the order of the political system.” This could be inferred, Hamilton said, “from the general nature of the judicial power; from the objects to which it relates; from the manner in which it is exercised; from its comparative weakness, and from its total incapacity to support its usurpations by force.” And such an inference is “greatly fortified” by the “important constitutional check,” which Congress could institute against the judges through impeachment.

This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. (Federalist 81)

In short, Hamilton rejected Brutus’ argument regarding judicial supremacy by asserting, first of all, that the inherent weakness of the judiciary would ensure that it would not exercise a free-wheeling interpretation of the Constitution contrary to the wishes of Congress, and secondly, that the threat of impeachment would serve as “a complete security” against the danger of judicial aggrandizement of authority.

As noted earlier, Brutus had dismissed the threat of impeachment as an inhibiting factor against judicial supremacy. Nor is it necessary to refer to judicial history to demonstrate that all the other so-called “safeguards” adduced by Hamilton would be quite insufficient to restrain a judiciary bent on exercising judicial supremacy.

Brutus had discounted in advance each of these so-called safeguards and had established quite clearly that, if the judges wished, the road to judicial supremacy was wide open to them. Hamilton’s attempt, therefore, in Federalist Nos. 78 and 81, to rebut Brutus’ conclusions on the danger of judicial supremacy constituted, in the final analysis, an abject failure.

Brutus’ thesis represented, and still represents today, a powerful indictment of the handiwork of the Framers, who unwittingly created one organ of government totally free of any checks and balances, despite the fact that this principle was supposed to be a mainstay of the republican system of government they were establishing. In the absence of any requirement of accountability, that organ of government was free to assert the right to “rule the roost” and exercise judicial supremacy.

CONCLUSIONS

Sound government, Brutus wrote, required that the three branches of government be both separated and accountable. Yet the Constitution, while it provided for checks and balances in relation to the legislature and executive, imposed no restraints on the Supreme Court. Once the tribunal was seized of a case, it would be free to rule as it chose and was accountable to no outside source. Since its voice would be the last pronouncement in the process of legislation, its ruling would effectively bind the other two branches. Government policy would thus be largely determined by an unelected body.

Hamilton’s attempt to deny Brutus’s charge that the Constitution gave license to judicial supremacy is seen, upon analysis, to be quite unpersuasive. James Madison, Father of the Constitution, belatedly came to realize, and regret, the manner in which an unfettered court could exercise domination over the other two branches of the federal government.

Under Madison’s original constitutional scheme, the national legislature would serve as the umpire of the federal system, and the court’s role would have been restricted. There would thus have been little room for judicial review of federal legislation, much less for judicial supremacy.

But the Convention rejected his proposal for a legislative veto over state legislation, and, as a result, the court was ensconced as the umpire of the federal system. Therewith, judicial review, and with it, judicial supremacy, were–unwittingly perhaps–instituted under the U.S. Constitution.

Bob Fiedler
Check me out

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

LEARN MORE

01

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

02

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

03

State of the Nullification Movement

108 pages. History, constitutionality, and application today.

get the report

01

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

02

maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

JOIN TAC

01

The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment

03

Nullification

Get an overview of the principles, background, and application in history - and today.

nullification