WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. He then goes on to the second important point. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first. The mode of appointing the judges. As an example he considers a situation where the public for some reason desires an unconstitutional law and the legislature obliges. It is a rule not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law.
Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: 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. Of all the essays, No. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. This exercise of judicial discretion in determining between two contradictory laws is exemplified in a familiar instance. Carey and James McClellan, eds.
Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness; yet 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; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body.
Views Read Edit View history. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.
Rather, it is the responsibility of the federal courts to protect the people by restraining the legislature from acting inconsistently with the Constitution:.
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. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.
Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.
Federalist No. 78
As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. Those concerned about this problem mentioned that there was no safeguard in the Constitution to prevent this.
Interestingly this and all remaining papers have the same date. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. The interpretation of the laws is the proper and peculiar province of the courts. 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.
The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other.
Federalist Papers Summary 78
The partition of the judiciary authority between different courts and their relations to each other. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.
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If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this tye that independent spirit in the judges which must be essential wgat the faithful performance of so arduous a duty. 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 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.
The people will never be in danger if the structure of the government written up in the Constitution remains. Why does Publius think that the judiciary is the least dangerous branch?
One can realistically wonder if the framers of the Constitution wanted the courts to be the sole voice on federal law constitutionality. What does this mean?
Because of the courts’ weakness, Federalist No. 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 the latter within the limits assigned to their authority.
There is no position which depends on clearer principles, than that iis act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.
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. This coincides with the view above that the judicial branch is the branch of judgment:. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.
It also asserts that judgment needs to be removed from the groups that make the legislation and rule:. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.
But it is not with a view to infractions of the Constitution only that the independence of the judges may be an essential thessi against the effects of occasional ill humors in the society. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. 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 tgesis 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.