WHAT IS THE THESIS OF FEDERALIST PAPER #78

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. A constitution is in fact, and must be, regarded by the judges as a fundamental law. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.

It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. If the power of making them was committed either to the executive or legislature there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws. These considerations apprise us that the government can have no great option between fit characters; and that a temporary duration in office which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity. Brutus took the position that the Constitution should adopt the English system in toto with minor modifications ; Hamilton defended the present system. Federalist Papers Summaries Index Page.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them pa;er conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution.

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Federalist No. 78

There is no authority to review judicial decisions from the supreme tgesis and no means for the legislature, executive or the people to correct this situation when it occurs as it has today. In those systems, if a law is passed which contradicts an earlier law, judges are obliged to rule fhesis the more recently passed law invalidates the first.

Views Read Edit View history. Thess was not until that the Supreme Court declared that it had not only the duty but it was their province to decide unconstitutionality, called judicial review. The partition of the judiciary authority between different courts, and their relations to each other.

Publius Alexander Hamilton May 28, They thought it reasonable, that between psper interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference. Hamilton viewed this as a protection against abuse of power by Congress. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.

The experience of Great Britain affords an illustrious comment on the excellence of the institution. The remainer of the paper continues the arguments for life long appointments based on being independent from the other branches of government cederalist factions within the population, and the requirement for obtaining the most learned in the law and precedence to serve which would not happen if terms were short.

what is the thesis of federalist paper #78

It not only serves to moderate the immediate mischiefs of those which may have been passed but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

In other projects Wikisource. It also asserts that judgment needs to be removed from the groups that make the legislation and rule:. But in a Constitutional system, any law contradicting the Constitution will be ruled invalid.

what is the thesis of federalist paper #78

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. Retrieved from ” https: Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the papre of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government.

The Avalon Project : Federalist No 78

And making the proper deductions for the ordinary depravity of human nature, the number must be thhesis smaller of those who unite the requisite integrity with the requisite knowledge.

In such a case, it is the province of the courts to liquidate and fix their meaning and operation.

As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

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This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.

The complete independence of the courts of justice is peculiarly essential in thesks limited Constitution. Does he make the case for what we today would call judicial review?

what is the thesis of federalist paper #78

It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep us latter within the limits assigned to their authority.

The primary point of contention between Hamilton and Brutus was in the concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court’s de facto revision of the Eleventh Amendment.

First, the mode of appointing judges. It is not otherwise to be supposed that the Constitution could off to enable the representatives of the people to substitute their will to that of their constituents.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government.

These considerations apprise us that the government can have no great option between fit characters; and that a temporary duration in office which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity.

Federalist Paper #78 by Deondrae Carter on Prezi

The experience of Great Britain affords an illustrious comment on the excellence of the institution. There is yet a further and a weighty reason for the permanency of the judicial offices which is deducible from the nature of the qualifications they require.

This coincides with the view above that the judicial branch is the branch of judgment:. 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. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they ie at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

WHAT IS THE THESIS OF FEDERALIST PAPER #78

The interpretation of the laws is the proper and peculiar province of the courts. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. 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. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

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. 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: 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. The people will never be in danger if the structure of the government written up in the Constitution remains. Second, the tenure by which they are to hold their places, and third, the partition of the judiciary authority between different courts and their relations to each other. 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. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

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. The interpretation of the laws is the proper and peculiar province of the courts.

Like all of The Federalist papers, it was published under the pseudonym Publius. He then goes on to the second important point.

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This coincides with the view above that the judicial branch is the branch of judgment:. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success feeralist iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

This simple view of the matter suggests several important consequences. In short, they are independent of the people, of the legislature, and of every power under heaven.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance.

Federalist No. 78

The experience of Great Britain affords an illustrious comment on the excellence of the institution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. This paper begins an examination of the judiciary department of the proposed government. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that, accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It examines primarily the term of office for judges but in making the case for lifetime appointments it details the responsibilities of the federal courts. In the present circumstances of this country and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

The manner of constituting it seems to embrace these several objects: The Federalist Papersas a foundation text of constitutional interpretation, are frequently cited by U. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

Why does Publius think that the judiciary is the least dangerous branch?

Federalist Papers Summary 78

A fhe is, in fact, and must be regarded by the judges, as a fundamental law. We proceed now to an examination of the judiciary department of the proposed government. The benefits of the integrity and moderation of the judiciary have already papper felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.

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Men placed in this situation will generally soon feel themselves independent of heaven itself. It is the less necessary to recapitulate the considerations there urged as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent.

what is the thesis of federalist paper #78

As an aside, I find it curious that the Constitution does not explicitly give the courts the sole power to decide constitutionality of the laws even though the issue was discussed during the drafting of the Constitution. 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. No legislative act, therefore, contrary to the Constitution, can be valid. Retrieved from ” https: 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.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. This exercise of judicial discretion in determining between two contradictory laws is exemplified in a familiar instance.

Federalist Papers Summary 78

This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The remainer of the paper continues the arguments for life long appointments based on being independent from the other branches of government and factions within the population, and the requirement for obtaining the most learned in the law and precedence to serve which would not happen if terms were short.

what is the thesis of federalist paper #78

It argues that the federalistt courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.