Monday, April 18, 2005

Judicial review

"Hamilton had always regarded the judiciary as the final fortress of liberty and the most vulnerable branch of government. John Marshall remedied that deficiency, and many of the great Supreme Court decisions he handed down were based on concepts articulated by Hamilton. In writing the decision in Marbury v. Madison (1803), Marshall established the principle of judicial review--the court's authority to declare acts of Congress unconstitutional--drawing liberally on Hamilton's Federalist number 78. His decision in the landmark case of McCulloch v. Maryland (1819) owed a great deal to the doctrine of implied powers spelled out by Hamilton in his 1791 opinion on the legality of a central bank.

"The scalding debate over repeal of the Judiciary Act prompted Hamilton to lambast Jefferson in a series of eighteen essays entitled 'The Examination.' Reviving themes from The Federalist Papers, he explained why the judiciary was destined to be the weakest branch of government. It could 'ordain nothing. Its functions are not active but deliberative. . . . Its chief strength is in the veneration which it is able to inspire by the wisdom and rectitude of its judgments.' For Hamilton, Jefferson's desire to overturn the Judiciary Act was an insidious first step toward destroying the Constitution: 'Who is so blind as not to see that the right of the legislature to abolish the judges at pleasure destroys the independence of the judicial department and swallows it up in the impetuous vortex of legislative influence?' Without an independent judiciary, the Constitution was a worthless document."

--Ron Chernow, Alexander Hamilton

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