Comparison of Federalist Paper 78 and Brutus Xi

During the creation of the Constitution in 1787, Constitutional Framers were faced with the responsibility of crafting an improved court system after the failure of The Articles of Confederation. When analyzing the beginning stages of the judicial branch, we must necessarily look at the debates that took place between the Federalists and the Anti-Federalists during the Founding. While both sides had radically differing opinions on the power and function of the judiciary, both sides agreed a better system was needed than that which the Articles of Confederation provided. Between the Federalists and the Anti-Federalists, the most notable debate was the power of the court to declare laws unconstitutional. According to the proposed Constitution, judges were appointed for life and their court rulings were not to be reviewed by another government branch. As a result, Brutus fears the Supreme Court’s decisions would be “independent of heaven itself” in his essay Brutus XI. However, Alexander Hamilton claims the judiciary will always be “the least dangerous” because the courts have neither “force nor will but merely judgement.” As we know, the Constitution was ratified despite Anti-Federalist concerns. However, many of the fears expressed in Brutus XI are still valid today. As Brutus predicted, the Supreme Court has the ability to “mould the government into almost any shape they please” because there is no “power above them to control their decisions.”

In Federalist Paper 78, Alexander Hamilton attempts to explicate and clarify the structure of the judicial branch as proposed by the Constitution. In his examination of the judiciary, he addresses three main ideas: crucial independence of the federal courts from other branches, permanent appointments, and the relation of the judicial branch to other branches (establishing concepts of judicial review). Through his case for the judiciary, Hamilton insisted the courts must be empowered to strike down laws passed by Congress that it deems “contrary to the manifest tenor of the Constitution.” To begin his argument, he addresses the proposed life tenure of federal judges. According to the Constitution, federal judges are appointed by the government and carry their position for the remainder of their life, assuming they maintain “good behavior.” Acknowledging critic’s contrasting opinion, he explains life-long office holding is the most valuable asset to the judicial branch. For example, permanency exempts federal judges from political pressure and further disallows the executive and legislative branches from imposing upon judicial decisions. Furthermore, Hamilton believed very few people will have the competency and integrity to judge the laws, and those who are sufficiently adequate in their office should be retained instead of replaced. Realizing Anti-Federalists view the judiciary as a threat to their liberties, Hamilton affirms the judicial branch is easily “the weakest of the three departments of power,” and “will always be the least dangerous to the political rights of the Constitution.” Hamilton further explains the federal courts have neither the "sword" of the executive, who is commander in chief of the nation's armed forces, nor the "purse" of the legislature, which approves all the tax and spending measures of the national government. Once again, according to Hamilton, the judiciary had "neither force nor will but merely judgment.” In short, because the court only has the power to judge, the judiciary relies on the other two branches to carry out its decisions. Interestingly, Hamilton acknowledges the possibility for courts to treat individuals unfairly, but claims “the general liberty of the people can never be endangered” as a result of the court’s weakness. Another critical point emphasizes the limited powers of the Constitution. He explains that such a “limitation of this kind can be preserved in practice no other way than through the medium of the courts of justice.” Essentially, the Constitution’s individual protections amount to nothing unless the courts have the power to declare laws in violation of constitutional provisions. Furthermore, he reiterates that the Constitution must be regarded as fundamental law. Continuing, he states that the Constitution represents the will of the people and the legislature can not reasonably replace its own will for the will of the people. Thus, it is necessary to possess a judicial branch that governs by the will of the people rather than that of legislators. Basically, Hamilton is saying neither branch is superior to another and all branches are inferior to the power of the people. As an example to consider judges as protection against legislative encroachment (otherwise known as judicial review), Hamilton suggests a situation where the public desire an unconstitutional law and the legislature likewise accommodates. Because the judiciary is independent from other branches, they are obliged to uphold the Constitution in the best interest of the general populous. For the remainder of his essay, Hamilton revisits and reinforces his argument for life-long appointments and judicial independence from other factions of government.

In Brutus XI, the author questions the authority of the proposed judiciary and voices Anti-Federalist concerns with this governmental branch. Up until this point, Brutus claims, the issue has insofar received little attention. In regard to the judicial branch, Brutus has three main concerns. Most importantly, he wanted judicial powers specifically outlined (claiming the Constitution was too vague on the subject), he then criticizes the inability for other branches to “check” the judiciary, and finally, he worries about the interference of politics within the court. To begin his essay, he laments over the complex terminology and confusing word choice used by the Framers to delegate powers to the judiciary. He further insists the distinction among cases arising under the Constitution is wholly unclear. With that being said, he asserts that judicial power will supersede the legislature in many cases because the court is given implicit power to interpret the meaning of the Constitution. As a result of the court’s power to interpret the Constitution, Brutus felt that the judiciary could do harm without power of the “purse of sword” mentioned in Federalist 78. As a whole, Anti-Federalists believed the judicial branch would ultimately undermine the legislature as well as the state government because judges would interpret the Constitution in a way to enhance their own power at the expense of individuals and state government. Brutus believed that because the judiciary’s powers are not strictly articulated, the court has the power to establish laws in favor of the government; and therefore, judges had the power to shape federal government indefinitely. To continue, Brutus also ponders the repercussions of life-long occupancy terms. Rightfully so, he questions if life-long terms will eventually reduce the United States into an aristocracy. Believing judicial power to be “altogether unprecedented in a free country,” Brutus questions why there is no authority above judicial rule. In addition, Brutus is concerned with the language of “equity” in Article III of the proposed Constitution. Not only does this section establish judicial review, but it also encourages courts to look at the “spirit of the law.” This, says Brutus, will lead to supremacy over other branches “because there is no power provided in the Constitution that can correct their errors, or control their adjudications.” As a whole, Brutus raises questions about judicial supremacy and warns against the shifting tide of federal court’s authority.

In regard to Federalist 78 and Brutus XI, the similarities and differences between the Federalists and the Anti-Federalists are unmistakable. During the Founding, one of the most prominent debates between Federalists and Anti-Federalists was the power of judges to declare laws unconstitutional. It is clear Brutus finds the idea of “judicial supremacy” troubling, as well as the Constitutional proposal of judges with lifetime tenure and the power of judicial review. Because judges were appointed for life and their decisions could not be reviewed by other branches, Brutus worried their decisions would be “independent of heaven itself.” However, Hamilton argues the court’s role is benign because they possess “force nor will but merely judgement,” and therefore will always be the “least dangerous branch.” To continue, in his argument, Brutus addresses a significant point from his opponents concerning what will occur if judges decide not to nullify unconstitutional laws, perhaps interpreting the Constitution to their own liking. In defense, Hamilton asserts that just because the courts are granted the ability to determine what laws mean does not suggest they are justified in substituting their personal will for that of Congress. While crafting the provisions of the judicial branch, the Founders has to decide if an independent judiciary with the power of judicial review would benefit the American people. While Hamilton and Brutus agreed upon an independent judiciary, they disagreed on the extent of its independence and the relationship between state and federal courts. Brutus believed the power of the federal courts would ultimately overtake state governments, but Hamilton viewed the courts as protecting individuals from legislative power. All in all, the debate over the “least dangerous branch” still continues today.

The Supreme Court has acquired today what some would refer to as “judicial supremacy.” As time has progressed, the court’s blatant and growing authority has reaffirmed Anti-Federalist concerns about the judicial branch having “no power above them to control their decisions.” The passivity of the other two branches (and even the American people) to allow the Court’s role to achieve such a superior role in the modern day continues to provoke questions about whether or not the judicial branch is still the “least dangerous.”