We proceed now to an examination of the judiciary department of the proposed government. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: This coincides with the view above that the judicial branch is the branch of judgment:. It 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. And it is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws. Hamilton describes it as a duty and their province. It also asserts that judgment needs to be removed from the groups that make the legislation and rule:.
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. 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. According to the plan of the convention, all the 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. Use American English from March All Wikipedia articles written in American English Articles with short description Use mdy dates from March All articles with unsourced statements Articles with unsourced statements from June Legal academics often argue over Hamilton’s description of the judiciary as the “least dangerous” branch. This principle of judicial review was affirmed by the Supreme Court in the case of Marbury v. 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. Sir William Blackstone explains in his landmark treatise on the common lawCommentaries on the Laws of England:.
Federalist Paper #78 by Deondrae Carter on Prezi
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 federlist sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. This exercise of judicial discretion in determining between two contradictory laws is exemplified in a familiar instance. Hamilton viewed this as a protection against abuse of power by Congress. Hamilton describes it as a duty and their province.
Federalist No. 78
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. 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.
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that thr as proper to be followed.
To these points, therefore, our observations shall be confined.
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 paper feferalist exclusively with the rationale for their tenure which is they hold their offices during good behavior, that is for life.
Federalist Papers Summary 78
The experience of Great Britain affords an illustrious comment on the excellence of the institution. It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part thexis each other, and neither of them containing any repealing clause or expression.
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. 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.
The first, the mode of appointing judges has been covered in the preceding two papers and is not discussed further. They paaper to regulate their decisions by the fundamental laws rather than by those which are not fundamental.
The only power of the judicial branch is the power of judgment:. There is no power above them, to control any of their decisions. 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. The tenure by which they are to hold their places.
Publius contrasts this rule with that which applies in representative governments without a written constitution.
Federalist No. 78 – Teaching American History
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.
Periodical appointments, however regulated, or by whomsoever made, would in some way or other, be fatal to their necessary independence. 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.
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But in a Constitutional system, any law contradicting the Constitution will be ruled invalid. The manner of constituting it seems to embrace these several objects: And thedis man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. One can realistically wonder if the framers of the Constitution wanted the courts to be the sole voice on federal law constitutionality.
It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.