Judicial Review is the power of the U.S.
Supreme Court to declare laws of the national and state governments and actions of the national and state governments as unconstitutional. Judicial review allows the U.S. Supreme Court to determine what is legal and what is not legal based on the Supreme Court’s interpretation of The U.S. Constitution. Those that oppose the viewpoint that the Supreme Court has the power of judicial review refer to Article III of The U.S. Constitution and argue that there isn’t anything written in The U.S. Constitution giving the U.S. Supreme Court the power of judicial review. Since it is not written in the U.S. Constitution, individuals that oppose the argument that the Founding Fathers had intended for the Supreme Court to have the power of judicial review, argue that the Founding Fathers never intended for the U.S. Supreme Court to have the power of judicial review.
Supporters of the U.S. Supreme Court having the power of judicial review bring up what was written in Federalist #78 by Alexander Hamilton, one of the
Founding Fathers. Since the Federalist Papers were written by the Founding Fathers to describe the makeup of the new government under the U.S. Constitution, supporters of the U.S. Supreme Court having the power of judicial review argue that Federalist #78 provides many examples of Hamilton’s support of the U.S. Supreme Court having the power of Judicial review. Access and read Federalist #78 from the attached file. Hamilton provides over two dozen examples supporting the argument that the Supreme Court will have the power of judicial review. I expect each student to provide ALL of these examples. After reading Federalist #78, provide Hamilton’s examples from the document that supports the argument that the Founding Fathers did indeed intend for the Supreme Court to
have that power. Again, you must provide material from Federalist #78 that specifically shows that the author of Federalist #78 did indeed intend for the
Supreme Court to have the power of judicial review; make sure that discuss each one of those statements and also specifically describe how each one of those
statements justifies the assumption that the founders intended for the Supreme Court to have judicial review, don’t just provide the statements from the Federalist paper. Conclude your response with your opinion, and why you have that opinion, about the benefits and problems with the Court having this power.
Do NOT write in your response about the justices having life tenure/good behavior or that they are nominated by the President and confirmed by the Senate; neither of these concepts have anything to do with judicial review.
The Federalist
The Judiciary Department
Independent Journal
Saturday, June 14, 1788
[Alexander Hamilton]
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of the proposed government.
In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. 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. To these points, therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their
places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.
First. 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.
Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the
precautions for their responsibility.
According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is
conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. 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. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
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 Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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. 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.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend
itself against their attacks. 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; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.
For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 And it proves, in the last
place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other
departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent
separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which
contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws,
and the like. 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.
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