...the Courts



...they have made judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

“Brutus” XV
New York Journal
March 20, 1788



There is no knowing what corrupt and wicked judges may do in process of time, when they are not restrained by express laws.

“A Democratic Federalist”
Pennsylvania Herald, Philadelphia,
October 17, 1787



The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits...They cannot be removed from office or suffer a dimunition of their salaries, for any error in judgement or want of capacity...The only clause in the constitution which provides for the removal of the judges from office, is that which declares, that “the president, vice-president, and all civil offices of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.


“Brutus” XV
New York Journal
March 20, 1788



Edmund Randolph

But I am sanguine in hoping, that in every other, justly obnoxious clause, Virginia, will be seconded by a majority of the states I hope, that she will be seconded...in limiting and defining the judicial power.

A Letter on the Federal Constitution
Richmond, Virginia
October 10, 1787



The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.

“Brutus” XV
New York Journal
March 20, 1788



Samuel Osgood

The Judicial Power extends to all cases of Law & Equity arising under the Constitution &ca – The Extent of the Judicial Power is therefore, as indefinite & unlimited as Words can make it – Where the united States are a Party against a State the supreme Judicial Court have expressly original Jurisdiction – suppose then, any State should object to the exercise of Power by Congress as infringing the Constitution of the State, the legal Remedy is to try the Question before the supreme Judicial Court - & they have Power, not confining themselves to the Letter of the general or State Constitutions, to consider & determine upon it, in Equity – This is in Fact leaving the Matter to the Judges of the supreme Judicial Court – They may by a Number of legal Decisions, make what Constitution they Please for the united states. - I am doubtful whether any Instance can be found, where a free People have voluntarily established, so great & so important, a supreme Judicial Court.

Letter to Samuel Adams
New York,
January 5, 1788



It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications. The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.


“Brutus” XI
New York Journal
January 31, 1788



The supreme court is another branch of fœderal authority, which wears the aspect of imperial jurisdiction, clad in dread array, and spreading its wide domain into all parts of the continent.

“The Impartial Examiner” I part Two
Virginia Independent Chronicle,
Richmond,
February 27, 1788



The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity. By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.

“Brutus” XI
New York Journal
January 31, 1788



Alexander Hamilton

In the first place, there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which hives them any greater latitude in this respect, , than may be claimed by the courts of every state. I admit however, that the constitution ought to be the standard of construction for the laws, and that wherever there is evidence in opposition, the laws ought to give place to the constitution.

“Publius”
The Federalist LXXXI
New York,
May 28, 1788



They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort.

“Brutus” XI
New York Journal
January 31, 1788



Alexander Hamilton

The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act. Nor is there any thing in the proposed constitution more than in either of them, by which it is forbidden.

“Publius”
The Federalist LXXXI
New York,
May 28, 1788



But it is easy to see, that in their adjudications they may establish certain principles, which being received by the legislature, will enlarge the sphere of their power beyond all bounds. It is to be observed, that the supreme court has the power in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature.

“Brutus” XII
New York Journal
February 7, 1788



That the Supreme Fœderal Court shall not admit of fictions, to extend its jurisdiction...

Resolutions of the State of Maryland
April 26, 1788



Alexander Hamilton

Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system...And the inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.

“Publius”
The Federalist LXXXI
New York,
May 28, 1788



Mercy Otis Warren

There are no well defined limits of the Judiciary Powers, they seem to be left as a boundless ocean, that has broken over the chart of the Supreme Lawgiver “thus far shalt thou go and no further,” and as they cannot be comprehended by the clearest capacity, or the most sagacious mind, it would be an Herculean labour to attempt to describe the dangers with which they are replete.

“A Columbian Patriot”
Boston,
February 1788



From these remarks it is easy to see, that in proportion as the general government acquires power and jurisdiction, by the liberal construction which judges may give the constitution, will those of the states lose its rights, until they become so trifling and unimportant, as not to be worth having.

“Brutus” XII
New York Journal
February 14, 1788



Alexander Hamilton

This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people...

“Publius”
The Federalist LXXVIII
New York,
May 28, 1788



Alexander Hamilton

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them...

“Publius”
The Federalist LXXVIII
New York,
May 28, 1788



John Adams

...the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that...their commissions should be during good behavior, and their salaries ascertained and established by law. For misbehavior, the grand inquest of the colony, the house of representatives, should impeach them before the governor and council, where they should have time and opportunity to make their defence; but if convicted, should be removed from their offices, and subject to such other punishment as shall be thought proper.

Thoughts on Government



Alexander Hamilton

The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other.

“Publius”
The Federalist LXXIX
New York,
May 28, 1788



Alexander Hamilton

he rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. The true test therefore, of a just application of them, is its conformity to the source from which they are derived.

“Publius”
The Federalist LXXXIII
New York,
May 28, 1788



James Wilson

...the proceedings of the supreme court, are to be regulated by the congress, which is a faithful representation of the people...

Philadelphia,
October 6, 1787



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