When James Madison, John Jay, and Alexander Hamilton set out to promote the ratification of the Constitution by the states through a series of articles now known as the Federalist Papers, Hamilton accepted the task of explaining the role of the American judiciary. His commentary on the judiciary and its proper role in relation to the other branches of government, found in Federalist No. 78, is fascinating. After reading it I marvel, at the very same time, at both Hamilton’s amazing foresight and tremendous lack thereof.

Hamilton envisioned the judiciary as being the “weakest” and “least dangerous” of the three great branches of government: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, 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.” In Hamilton’s mind, based upon his experience and that of the nation at the time, dangerous strength was found in the ability to wield the sword and to control the purse, neither of which the judiciary possessed.

To Hamilton, “[t]he Executive” on the other hand was a genuine threat because it “not only dispenses the honors, but holds the sword of the community.” And, “[t]he legislature” also wielded power in his mind because it “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.” But “[t]he judiciary”, in Hamilton’s mind posed no real threat to anyone because it “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.” Hamilton’s assessment of the judiciary was that “[i]t 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.”

In a nutshell, Hamilton thought that the judiciary was the wimpy branch of government, at least in so far as its ability to enforce its will by brute force or to finance itself or anything else. He saw the judiciary as being in “continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

Hamilton saw no threat to liberty in the judiciary alone, but he saw great danger in the combination of the judicial, legislative and executive powers. “[T]he 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. For I agree, that there is no liberty, if the power of judging be not separated from the legislative and executive powers. . . . [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments. . . .”

Hamilton thought it essential to the American form of government that the judiciary would serve as the guardian or enforcer of the Constitution, sitting on silent watch to ensure that the other two branches stayed within the parameters that the Constitution set out for them in relationship to each other and to the People.

He wrote: “[e]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

But, Hamilton did not envision that this role for the judiciary would “imply a superiority of the judiciary to the legislative power.” Why? How could that be? In the course of intepreting the Constitution wouldn’t the judiciary be able to wield the very same power to “substitute their will to that of” the People, the Legislature? I believe Hamilton saw no such threat at the time because he genuinely (albeit naively) thought that the judiciary and its members would respect their limited role to interpret the laws given to them by the hands of the People and the Legislature. He said, “[t]he interpretation of the laws is the proper and peculiar province of the courts. 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.”

Hamilton did not envision the more free wheeling and untethered judicial reasoning and decision making that we often experience today. He believed that judges would enforce “the power of the people” and “the will of the . . . people, declared in the Constitution” and that “the judges ought to be governed by the latter. . . .” He believed that judges would “regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

But often today we see the judiciary untethering itself from the foundation to which Hamilton thouht it to be bound – judges read between the lines and discern meanings and applications for phrases like “due process” and “equal protection” that no one previously imagined and they find new previously unimaginable rights in penumbras and single words like “privacy.” Robert Bork, former Justice of the Federal Circuit Court for the District of Colombia, nominated by President Reagan to the U.S. Supreme Court, writes of this phenomenon as follows: ”Once the justices depart, as most of them have, from the original understanding of the principles of the constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution , whether it rules truly or not, the court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic constitution, and philosophical incompetence, is lethal.”

Bork explains that popular support for judicial supremacy rests upon the belief that the court is applying fundamental principles laid down by the Constitution’s founders. As he points out, “[w]e would hardly revere a document that we knew to be no more than an open warrant for judges to do with us as they please.”

But unfortunately, “the habit of legislating policy from the bench, once acquired, is addictive.” As Bork explains, “[t]he Constitution, or the law we call constitutional – they are by no means identical – is the highest prize. . . . Why? Because the Constitution is the trump card in American politics, and judges decide what the Constitution means. When the Supreme Court invokes the Constitution, whether legitimately or not, as to that issue the democratic process is at an end.”

In the end, Bork asks “who is to protect us from the power of judges? How are we to be guarded from our guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable. They must not make or apply any policy not fairly to be found in the Constitution or a statute. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. The ratifiers of the Constitution put in place the walls, roofs, and beams; judges preserve the major architectural features, adding only filigree.”

Justice Joseph Story once wrote: “Upon subjects of government it has always appeared to me, that metaphysical refinements are out of place. A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation.” There is a famous story about Justice Oliver Wendell Holmes and Judge Learned Hand. The two are said to have had lunch together and afterward as Holmes began to drive off in his carriage, Hand called after him, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”

Separation of powers and the supreme role of the People are most threatened in that moment when a judge determines what he or she believes in a particular case is just, but cannot find direct support for that result in the words or history of the Constitution. As Bork forewarns, the seduction of power is strong, but if the judge gives in to the seduction, he or she will begin to rule where a legislator or the People rightfully ought to rule.

What would Hamilton have thought of many of the judicial pronouncements over the years: Dred Scott placing a right to slave ownership in the Constitution? Griswold finding rights in penumbras? Roe declaring abortion a constitutional right? Flag burning and pornography (even simulated child pornography) free speech? I wonder how he would have written Federalist No. 78 had he done so today?