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  • 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.

The story behind Hamilton’s writing of the Federalist Papers is just amazing.

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Alexander Hamilton on Judicial Independence

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    Mine Shi Lee posted on 2016/12/13
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