Federalist 78 Analytical Reading Activity

Topic 2.8: The Judicial Branch Source Analysis Before You Read What was the Federalist view of government? Strong central government necessary for states to form a union What was the Anti-Federalist view of government? Weak central government, associated strong central government with British tyranny & felt that states would give up too much power Why did the Federalists and Anti-Federalists have different viewpoints? They had disagreed on how much power the government should hold How is each side's viewpoint reflected in our political institutions today? Our current government has powerful and weak aspects such as the system of checks and balances that prevents overpower in each branch. The Federalist No. 78 Check Your Understanding Paraphrase Hamilton's purpose and focus for this essay. He wants to analyze and examine how the judiciary interacts with the existing Confederation, and if this way of operating is efficient. Check Your Understanding What does Hamilton mean when he says "good behavior"? "Good behavior" refers to the justices carrying out their role constitutionally and based on the law rather than to their own personal interests. Source Analysis According to Hamilton's argument, why does lifetime appointment secure an "impartial administration of the laws"? The expertise of the justice over time will allow for a more "Impartial administration of the laws as their time in the position endures. Check Your Understanding What does Hamilton mean by the power of the "sword" and the power of the "purse"? The power of the "sword" refers to enforcing of rules and the power of the "purse" refers to dealing with money. Connect to Content Hamilton claims the judiciary has no influence over either "sword" or "purse." Write a claim explaining whether there is any way in which the judiciary could potentially influence the "sword" or the "purse." The judiciary can take no direct action on the "sword" or "purse" but could influence both aspects by judging cases that revolve around them. Source Analysis Highlight or underline why, according to Hamilton's argument, is it important to give the judiciary some protections against the other two departments or branches. "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." Source Analysis According to Hamilton's argument, how is liberty secured by the separation of powers? Why might this not work? According to Hamilton, the union of the three branches threatens liberty. Because the judiciary is naturally weaker than the other branches, it is more likely to be overpowered and overruled. Check Your Understanding According to Hamilton, how does lifetime tenure or "permanency in office" of judges and justices help to secure justice? Since the practice of judging is held constant due to lifetime tenure, justice is preserved Check Your Understanding Highlight or underline Hamilton's definition of a "limited Constitution." "By a limited Constitution. I understand one which contains certain specified exceptions to the legislative authority." Source Analysis According to Hamilton's argument, what is the duty of the courts in a limited Constitution and how might that duty be impaired? The duty of the courts is to declare all acts contrary to the manifest tenor of the Constitution void and that may be impaired by the weakness of the judiciary. Source Analysis Underline the assumption of the Anti-Federalists that Hamilton is addressing here. "Some perplexity respecting the rights of the courts to pronounce legislative acts void. because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power." Source Analysis Based on Hamilton's argument, what would be the danger of allowing Congress to determine the constitutionality of their acts? How does this further develop his counterargument to critics of judicial review? Since Congress judges themselves off constitutionality, they could be bias. This helps further his argument for judicial review because judicial review would assess the validity of the judgement as it relates to constitutional principles. Source Analysis How does Hamilton further define the role of the courts? What line of reasoning does he employ here to support his claim? Hamilton defines the role of the courts to be an act of communication between the people and Congress and to keep roles assigned to their respective authorities. He also reserves the interpretation of laws to the courts. In order for a fair system of governing. these roles must be highlighted and carefully followed. Check Your Understanding Summarize how Hamilton refutes the critique that the power of judicial review would make the Court superior to the other branches. Judicial review follows the fundamentality of the laws and is placing the people among every other aspect. Connect to Content How is Hamilton's argument expressed in the working of our government today? The judiciary can have powers over the legislature through checks and balances. Academic Vocabulary Define the word precedents as used in this paragraph. precedents: earlier actions or cases that are used to judge a situation. Check Your Understanding Highlight or underline the additional reason outlined here in support of lifetime tenure of federal judges/justices. "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. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge...." After You Read Thinking Like a Political Scientist Reasoning Process: Comparison What claim put forward by those opposed to a strong and independent judiciary does Hamilton address? Hamilton addresses that those opposed to a strong and independent judiciary believed the power to be unbeneficial and unnecessary. How does he answer that claim? What does his response tell you about the Framers' intentions regarding the institutional design of the judiciary? Hamilton explains the necessity of the judiciary branch, as they enforce the principles listed in the Constitution and protect the rights of the people. Framers' intentions were to ensure that every decision was fair and took people's rights to heart. Political Science Disciplinary Practices Source Analysis How does Hamilton support his claim that life tenure (good behavior) is a necessity for an independent judiciary? He explains that the judges will not face the fear of losing their job. Because of this, they will be less biased when making decisions and will honor the feelings of the people. How does Hamilton's defense of lifetime tenure and of judicial review relate to the principles of separation of powers and checks and balances? It stresses the importance of the separation of the judiciary from the executive and legislature - there is no clashes between rulings. Brutus No. 15 Check Your Understanding Highlight or underline the author's purpose in writing this essay. "I said in my last number, that the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. The business of this paper will be to illustrate this, and to shew the danger that will result from it.