In Federalist No. 78, Alexander Hamilton offers a reassuring perspective on the newly proposed Constitution’s judiciary branch, positing it as the least dangerous to the political rights of the Constitution. Hamilton argues, “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.” This assertion rests on the judiciary’s lack of force and will, possessing neither the sword of the executive nor the purse controlled by the legislature. Hamilton’s confidence in the judiciary’s limited capacity to influence broader governmental policies and societal norms seems, at first glance, a reflection of a meticulously designed system of checks and balances. However, the evolution of the American judiciary from a passive arbiter of the law to an assertive participant in the legislative process prompts a reevaluation of Hamilton’s claim. This op-ed aims to contrast Hamilton’s optimistic view with the modern reality, where the judiciary has taken on a role far beyond its original remit, edging into territories that some argue should be reserved for the legislative branch.
Historical Context and Original Intent
The framers of the Constitution designed the judiciary as an independent arbiter, tasked with interpreting the law and ensuring that legislation and executive actions complied with the Constitution’s principles. This role was grounded in a deep-seated belief in the separation of powers, a mechanism intended to prevent any one branch of government from overreaching and to protect individual liberties. In Federalist No. 78, Hamilton elaborates on the judiciary’s role, emphasizing its function as a bulwark against legislative tyranny and a defender of the Constitution against unjust laws. He posits that the judiciary’s power of judicial review, though not explicitly mentioned in the Constitution, is implied as a necessary function to fulfill its role as the protector of the Constitution.
Hamilton’s vision was one of a judiciary that, through its interpretations of the law, would safeguard the Constitution’s principles without veering into the realm of policy-making or infringing on the domains of the legislative and executive branches. The judiciary’s authority was thus seen as confined to the interpretation of law, with a clear demarcation that prevented it from exerting influence over the purse or the sword. This delineation of power underscored a fundamental aspect of the framers’ intent: to create a balanced government where no single branch could predominate or assume the functions of another.
In the ensuing years, the landmark case of Marbury v. Madison established the principle of judicial review, affirming the judiciary’s authority to declare laws unconstitutional. This decision, while solidifying the judiciary’s role as an interpreter of the Constitution, also set the stage for the expansion of judicial power. The judiciary’s ability to nullify laws deemed inconsistent with the Constitution introduced a dynamic interplay among the branches of government, with far-reaching implications for American democracy.
As we examine the trajectory of the judiciary since the days of Hamilton, it becomes apparent that the modern court has ventured into territories far beyond the framers’ original design. The evolution from a passive interpreter of the law to an active participant in the legislative process raises critical questions about the balance of power and the true nature of judicial independence. This op-ed seeks to explore these questions, delving into the implications of the judiciary’s expanded role and the challenges it poses to the principles of limited government and the separation of powers envisioned by the framers.
Evidences of Judicial Activism
In recent decades, the term “judicial activism” has become a focal point of debate within the legal and political spheres, referring to instances where courts are perceived to make decisions based on personal or political considerations rather than strict adherence to the law. This phenomenon is seen by critics as a departure from the judiciary’s intended role of legal interpretation, venturing instead into the realm of policy-making—a function traditionally reserved for the legislative branch.
The evidence of judicial activism is manifold and spans a wide array of issues, from civil rights and abortion to environmental regulations and gun control. High-profile cases like Roe v. Wade and Obergefell v. Hodges are often cited as exemplars of the judiciary making law, rather than interpreting it. In these instances, the Supreme Court’s rulings have had far-reaching implications for American society, effectively establishing new legal standards and societal norms. While proponents argue these decisions are in the spirit of protecting individual rights and liberties, critics see them as overreaches that bypass the democratic process.
Another example is the use of nationwide injunctions by lower courts to halt policies of the executive branch, a practice that has grown in frequency over recent administrations. Such injunctions have the power to halt policies across the entire country, not just within the jurisdiction of a particular court, raising questions about the balance of power between the judiciary and the executive.
Contrasting Views on Judicial Activism
The debate over judicial activism is not merely a legal argument but a deeply philosophical one, touching upon the very nature of democracy and the rule of law. Supporters of judicial activism argue that the judiciary plays a crucial role in safeguarding minority rights against the tyranny of the majority, a concern deeply rooted in the founding of the American Republic. They contend that in a complex, evolving society, the courts must have the flexibility to interpret the Constitution in a manner that reflects contemporary values and challenges.
On the other side of the debate, critics of judicial activism maintain that such an approach undermines the democratic process, allowing unelected judges to make decisions that should be the purview of elected representatives. This perspective echoes Hamilton’s original contention in Federalist No. 78 that the judiciary should have no force or will but merely judgment. Critics argue that by stepping into the arena of policy-making, the judiciary not only exceeds its constitutional mandate but also erodes the foundational principle of separation of powers.
The Importance of Judicial Restraint
The concept of judicial restraint offers a counterpoint to judicial activism, advocating for a conservative interpretation of the Constitution and a deference to the legislative and executive branches’ policymaking prerogatives. Proponents of judicial restraint argue that the courts should avoid encroaching on political questions and instead focus on applying the law as it is written, leaving the creation of new laws to the legislature.
Judicial restraint is seen as essential to maintaining the balance of power among the branches of government and ensuring that the judiciary remains an impartial arbiter of the law. This approach aligns with Hamilton’s vision of a judiciary that, while independent, operates within the confines of the Constitution and respects the roles of the legislative and executive branches. By adhering to the principles of judicial restraint, the judiciary can uphold the rule of law while avoiding the pitfalls of politicization and overreach.
Conclusion
The evolution of the judiciary from Hamilton’s conception of the “least dangerous” branch to its current role in American governance underscores the dynamic nature of constitutional interpretation and the ongoing debate over the limits of judicial power. While the judiciary’s ability to adapt to changing societal values is a testament to the enduring strength of the Constitution, the rise of judicial activism presents challenges to the principles of democracy and separation of powers that lie at the heart of the American political system.
To reconcile Hamilton’s vision with the modern reality, a renewed commitment to judicial restraint and adherence to the original intent of the Constitution may offer a path forward. By embracing a more conservative approach to constitutional interpretation, the judiciary can preserve its vital role as a defender of rights while respecting the democratic process and maintaining the delicate balance of power that defines the American Republic.
Peter Serefine is a Patriot Academy Constitution Coach and Instructor for Institute on the Constitution, Author, Navy Veteran, and PA State Constable
Homepage: https://www.liberty-lighthouse.com
Follow Peter: Substack – Facebook – YouTube – Twitter – Truth Social – Frank Social
If you enjoyed this article, then please REPOST or SHARE with others; encourage them to follow AFNN. If you’d like to become a citizen contributor for AFNN, contact us at managingeditor@afnn.us Help keep us ad-free by donating here.
Truth Social: @AFNN_USA
Facebook: https://m.facebook.com/afnnusa
Telegram: https://t.me/joinchat/2_-GAzcXmIRjODNh
Twitter: https://twitter.com/AfnnUsa
GETTR: https://gettr.com/user/AFNN_USA
CloutHub: @AFNN_USA