FEDERALIST NO. 78

Use a direct quote from Federalist 78 to answer the following. What, Mr. Hamilton, should happen when laws are un-Constitution?

"... 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."

Use a direct quote from Federalist 78 to answer the following. Why, Mr. Hamilton, should judges serve for life?

"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 to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

In your opinion, what would happen if we had elections for Supreme Court Justices?

(Again, based upon your opinion...) It would be bad because judges that are elected by the people have a chance to be corrupt

In your opinion, does all of this empower judges and the judiciary too much?

(Answer according to yourself) No, because their rulings can be overridden if it is unconstitutional

If you rewrote the Constitution today (don't do it), how would you change the judiciary?

(Please just do this yourself, this is my opinion) Judicial restraint should be to where they cannot rule however they want

But wait, Hamilton's not done..."It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power." Based on the checks and balances written into the Constitution, and the actual contemporary behavior of the government, do you agree with Hamilton's assessment in his preceding quote?

(Your personal opinion, but...) Yes

Now Hamilton turns his attention to another aspect of the judiciary..."The complete independence of the courts of justice is peculiarly essential in a limited Constitution...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 contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." What practice of the federal courts does this argument support?

Federal courts cannot pass bills since they are an independent branch

And what is that FORCE and WILL stuff and why did he capitalize it (he really did)?

Force is the executive branch enforcing the decisions and will is what the judiciary wants to decide

What is Hamilton arguing for here, and do you agree with him?

Hamilton is arguing that the power given to judiciary keeps the checks and balances fair

When the Supreme Court recently ruled that laws limiting same-sex marriage are unconstitutional there was a backlash from many people who said that the justices were, "making law." What would Hamilton say to that?

He would most likely agree since orientation falls under the First Amendment

Now Hamilton's going to get off the relative powers of the branches riff and get to the part about an independent judiciary. He writes, "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." What does independence mean?

Independence means the the freedom for the judiciary to make the decisions they please

According to Hamilton, which is more valid and important, laws or constitution?

The Constitution

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. 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." According to the quote by Hamilton above, when laws and the constitution collide, who wins?

The Constitution wins because it is the supreme law of the land

And if Hamilton is correct that the judiciary is the least dangerous branch, in your humble opinion, what is the most dangerous branch?

The Legislative Branch

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. 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. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." According to Hamilton, who should be the keeper of the constitutional conscience?

The Supreme Court

According to Hamilton, what should judges do when laws stand in opposition to the Constitution?

The judges need to follow the laws of the Constitution

Alexander Hamilton wrote that, "The judiciary ...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." Wait a second, what did Hamilton just say? Could you please translate the preceding Hamilton quote into a 140-character Tweet:

The judiciary branch cannot physically enforce a law w/o the Executive/Legislative

Hamilton goes on to write, that the power of the judiciary, "must depend upon the aid of the executive arm even for the efficacy of its judgments." What does that mean?

The judiciary depends on the executive branch, even if the judiciary desires something to be done

And could you prove it with a fact or two, please:

The legislative branch makes and passes laws, so even if the President vetoes the bills, Congress can override it with the majority

Furthermore...sayeth Hamilton, "The judiciary has no influence over either the sword or the purse. It may be said to have neither FORCE nor WILL but merely judgment," What does Hamilton mean by the "sword" and the "purse"?

The sword is enforcement and the purse is money from the Congress

How much power would the judiciary have if there were no executive branch?

They would have more power than the legislative

And once you figure out what that quote means, do you think Hamilton is correct?

Yes

Do you agree with Hamilton that the judiciary is the least dangerous branch?

Yes

Overall, does Hamilton's argument convince you?

Yes