In the effort to convince the states to ratify the Constitution it was Alexander Hamilton who took on the primary task of explaining the role of the American Judiciary through his articles now known as Federalist Papers Nos. 78 through 83. But, it was James Madison who addressed the topic of separation of powers in his articles now known as Federalist Papers Nos. 47 and 48. Madison, like Hamilton, demonstrates at the very same time both an amazing amount of foresight and an unfortunate lack thereof.

Madison, like Hamilton, saw great danger in the combination of legislative, executive, and judicial power. “[T]he preservation of liberty,” Madison proclaimed in Federalist No. 47, “requires that the three great departments of power should be separate and distinct. . . .” Madison believed that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. . . .”

It was not so much minor encroachments by one department upon another that Madison feared as it was wholesale usurpation of powers by one department. He wrote, “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. . . .”

But, just as Hamilton saw the Executive and Legislative branches of government as being the greatest threats to liberty, Madison similarly saw the Executive and Legislative departments as being the greatest threats to separation of powers: “adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. . . .”

However, one feels compelled to ask, why was it that neither Madison nor Hamilton envisioned the possibility that the Judiciary might encroach upon the power of the Executive and Legislative departments by “substitut[ing] their will to that of” the People, the Executive, the Legislature under the guise of constitutional interpretation while performing “judicial review”? These gentlemen seem to have shared a genuine blind spot with regard to this possibility.

This omission seems particularly odd, given Madison’s correct perception of the ease with which encroachments by one department upon another could occur, given the closely defined parameters of the various branches: “[t]he several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. . . .”

Madison also correctly gauged that the seduction of power would be too strong to be restrained by mere words written in a document: “in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. . . .” “But experience assures us, that the efficacy of the provision [separation of powers] has been greatly overrated. . . .” “The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. . . .”

How many remember that during the 2008 Presidential Campaign, and then again last year when setting out to find a replacement for Justice David Souter on the United States Supreme Court, President Obama told us that in choosing justices he would prefer “somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

Does it sound like President Obama was describing a Justice who would respect the demarcation between Judicial, Executive and Legislative powers? Does it sound like he was describing a Justice who would have won the support of James Madison?

Interestingly, President Obama’s nominee for the Court, Judge Sonia Sotomayor, did not embrace the President’s view: “I . . . wouldn’t approach the issue of judging in the way the president does,” she testified before the Senate Judiciary Committee. “He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases, it’s the law.”

I believe that both Madison and Hamilton would have said a resounding “Hear! Hear!” to Justice Sotomayor’s remarks. Now, only time will tell whether Justice Sotomayor’s repudiation of so-called empathetic judging was sincere. But, as constitutional scholar and former Justice of the United States Court of Appeals for the Tenth Circuit, Michael McConnell, puts it, “her answer was a powerful tribute to the traditional American commitment to the rule of law . . . an ideal of judging as old as the republic.”

Although Justice Sotomayer’s response was the correct one, the one that Madison and Hamilton would have expected, what does it mean in practicality for a judge to say, “I merely apply the law”? As Law Professor Michael Seidman has asked, “How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First-year law students understand within a month that many areas of the law are open textured and indeterminate – that the legal material frequently must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments.”

And, Seidman is not alone. Another legal scolar, Ronald Dworkin, also has taken on the notion of being “faithful to the law,” suggesting that “the phrase means nothing, because there are so many contesting views about how to discover what the law is that ‘fidelity to law’ means fidelity to your own conception of law.” When a judge says that he or she merely applies the law, what exactly are they saying?

Professor McConnell has suggested that “[i]t is a shame that no one on the judiciary committee asked Sotomayor the question posed by Seidman and Dworkin: When the law is not clear, what does it mean to say that ‘the job of a judge is to apply the law’? Without elaboration, the statement is more platitude than commitment. What could it mean? And it would have been interesting to ask Judge Sotomayor why a judge should not decide hard cases based on her own moral judgment.”

As Hamilton recognized in Federalist No. 78, “the courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

McConnell concludes as follows: “[e]mpathy is a human virtue, just as rationality and justice are desirable features in the law. But to allow judges to decide cases in accordance with empathy, or to advance their own, necessarily disputed, notions of justice and rationality above the dictates of the law, would accord the judiciary a degree of discretion that is incompatible with an understanding of law based on popular democratic authority.”

In other words, judges deciding cases based upon “empathy” would not view themselves as being restrained by what Madison called “the mere demarcation on parchment of the constitutional limits of the several departments. . . .”

Columbia Law School Professor Philip Hamburger concludes his Book “The Book of Judges,” as follows: “Men will ever be discontent with law and ambitious for power, and judges will ever be vain enough to aspire to a justice above human law, but it is therefore all the more important for judges to recall the common law ideals of law and judicial duty.”

Here’s to hoping that our judges can find the strength to refrain from “boldly going where no man has gone before” with the law that we call constitutional, when neither the text and history of the document, nor the history and traditions of the People, point in the particular direction that the judge might prefer or find to be “empathetic.”