Chapter 12
THE FEDERAL COURTS:
Activism versus Restraint
Theoretical Focus: Federalist #78
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Introduction
• In Federalist Papers # 78-83, Publius deals with three facets of the proposed Judicial Branch:
• The selection of federal judges.
• The tenure of office.
• The partition of the jurisdiction.
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Democracy and Judicial
Appointments
• Hamilton is careful not to address the lifetenure of federal judges along with the mode of appointment because it suggests that the judiciary may be seen as antirepublican. Why?
• Unelected judiciary
• The President (Executive) appoints members and is also indirectly elected.
• Senators are also indirectly elected.
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Justification for Judiciary as
Proposed
• Therefore, Hamilton discusses the nonaristocratic nature of the judiciary rather than its blatantly elitist composition.
• So, he discusses the nature of an independent judiciary and its authoritative purpose within a republic.
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Mode of Appointment
• Referring to Federalist #76-77, Alexander
Hamilton states that appointing federal judges should be considered the same as other appointed federal officials:
• Executive nomination
• Senate confirmation
• Hamilton proposes the same process for the judges who will comprise the federal judiciary
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Tenure: Life Terms
• The tenure of federal judges should hold their offices during “good behavior” etc. if not they can be impeached and tried for their “high crimes and misdemeanors.”
• Publius counters the Anti-Federalist concern that an un-elected, life-tenured national judiciary will not be tyrannical.
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Tenure: Life Terms
• Hamilton believes the duration of life terms ensures impartiality because the judiciary does not control the purse (money) or the sword
(military).
• The judiciary “is the least dangerous branch.”
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Judicial Review
• Publius never mentions “judicial review.”
• In fact, Hamilton refers to Federalist #22 by quelling fears that the judiciary will not be active in foreign policy issues.
• Moreover, he points to the lack of judicial power as a shortcoming of the Articles: “Crowns the defects of the [Articles of] Confederation.”
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Judicial Review
• Hamilton expounds the need for the Judiciary to declare acts of the Legislature “void when they conflict with the Constitution.”
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Judicial Review
• Thus, the rule of law is paramount, and the role of the national judiciary is to decide this, i.e. judicial review!
• Consequently, the judicial branch power is to determine what law is and it provides a check on the constitutionality of the other two branches.
• In turn, reason is the power of the judiciary branch according to Hamilton which allows for making judgments he calls “moral imperatives.”
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Judicial Review in Practice
• Table 12.1 Number of Federal Statutes held
Unconstitutional by the Supreme Court, 1790-
2008 Page 341
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Judicial Review in Practice
• Table 12.2 Number of State Laws and Local
Ordinances Held Unconstitutional by the Supreme
Court, 1790-2006 Page 342
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