FReeper Book Club: The Debate over the Constitution, Federalist #78

Throughout the months of the debate, Brutus had criticized the Constitution for the design of the Judiciary branch in essay after essay. Hamilton had held his fire, but now, ten weeks after his last essay, he begins a six-part series defending the Convention’s plan.

² We proceed now to an examination of the Judiciary department of the proposed government.

³ In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.

⁴ It is the less necessary to recapitulate the considerations there urged as the propriety of the institution in the abstract is not disputed, the only questions which have been raised being relative to the manner of constituting it and to its extent.

⁷ First: As to the mode of appointing the judges, this is the same with that of appointing the officers of the Union in general and has been so fully discussed in the two last numbers that nothing can be said here which would not be useless repetition.

⁸ Second: As to the tenure by which the judges are to hold their places, this chiefly concerns their duration in office, the provisions for their support, the precautions for their responsibility.

⁹ According to the plan of the Convention, all judges who may be appointed by the United States are to hold their offices during good behavior, which is conformable to the most approved of the state constitutions and among the rest to that of this state.

¹⁰ Its propriety, having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection which disorders their imaginations and judgments.

¹¹ The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government.

¹² In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.

¹³ And it is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.

¹⁴ 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.

¹⁵ The Executive not only dispenses the honors, but holds the sword of the community.

¹⁶ The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.

¹⁷ The Judiciary, on the contrary, 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.

¹⁸ It 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.

²⁰ It proves incontestably that the Judiciary is beyond comparison the weakest of the three departments of power¹, that it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks.

²¹ 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.

²² For I agree that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”²

²³ And it proves in the last place that as liberty 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, that as all the effects of such a union must ensue from a dependence of the former on the latter notwithstanding a nominal and apparent separation, that as from the natural feebleness of the Judiciary it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches, and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and in a great measure as the citadel of the public justice and the public security.

²⁴ The complete independence of the courts of justice is peculiarly essential in a limited Constitution.

²⁵ By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws and the like.

²⁶ Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

²⁷ Without this, all the reservations of particular rights or privileges would amount to nothing.

²⁸ 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.

²⁹ It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void.

³⁰ As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

³¹ There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void.

³³ 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.

³⁴ 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.

³⁵ 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.

³⁶ 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.

³⁷ The interpretation of the laws is the proper and peculiar province of the courts.

³⁸ A constitution is, in fact, and must be regarded by the judges, as a fundamental law.

³⁹ It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the Legislative body.

⁴⁰ 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.

⁴¹ Nor does this conclusion by any means suppose a superiority of the Judicial to the legislative power.

⁴² It only supposes that the power of the people is superior to both, and that where the will of the Legislature, declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former.

⁴³ They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.

⁴⁴ This exercise of judicial discretion in determining between two contradictory laws is exemplified in a familiar instance.

⁴⁵ It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression.

⁴⁶ In such a case, it is the province of the courts to liquidate and fix their meaning and operation.

⁴⁷ So far as they can by any fair construction be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other.

⁴⁸ The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first.

⁴⁹ But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing.

⁵⁰ It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves as consonant to truth and propriety for the direction of their conduct as interpreters of the law.

⁵¹ They thought it reasonable that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference.

⁵² But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed.

⁵³ They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority, and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

⁵⁴ It can be of no weight to say that the courts on the pretense of a repugnancy may substitute their own pleasure to the constitutional intentions of the Legislature.

⁵⁵ This might as well happen in the case of two contradictory statutes, or it might as well happen in every adjudication upon any single statute.

⁵⁶ 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.

⁵⁷ The observation, if it prove anything, would prove that there ought to be no judges distinct from that body.

⁵⁸ If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

⁵⁹ This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community.

⁶⁰ Though I trust the friends of the proposed Constitution will never concur with its enemies³ in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution, would on that account be justifiable in a violation of those provisions, or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body.

⁶¹ Until the people have by some solemn and authoritative act annulled or changed the established form, it is binding upon themselves collectively, as well as individually, and no presumption or even knowledge of their sentiments can warrant their representatives in a departure from it, prior to such an act.

⁶² But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution where legislative invasions of it had been instigated by the major voice of the community.

⁶³ But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.

⁶⁴ These sometimes extend no farther than to the injury of the private rights of particular classes of citizens by unjust and partial laws.

⁶⁵ Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.

⁶⁶ It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the Legislative body in passing them, who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled by the very motives of the injustice they meditate to qualify their attempts.

⁶⁷ This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.

⁶⁸ The benefits of the integrity and moderation of the Judiciary have already been felt in more states than one, and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.

⁶⁹ Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts, as no man can be sure that he may not be tomorrow the victim of a spirit of injustice by which he may be a gainer today.

⁷⁰ And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

⁷¹ That inflexible and uniform adherence to the rights of the Constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

⁷² Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence.

⁷³ If the power of making them was committed either to the Executive or Legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws.

⁷⁴ There is yet a further and a weightier reason for the permanency of the judicial offices which is deducible from the nature of the qualifications they require.

⁷⁵ It has been frequently remarked with great propriety that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.

⁷⁶ 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, and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.

⁷⁷ 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.

⁷⁸ 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.

⁷⁹ These considerations apprise us that the government can have no great option between fit character, and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity.

⁸⁰ In the present circumstances of this country and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear, but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

⁸¹ Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices in point of duration, and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government.

⁸² The experience of Great Britain affords an illustrious comment on the excellence of the institution.

[1] The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” Spirit of Laws, Vol. 1, Page 186.
[2] Ibid., Page 181.
[3] Vide Protest of the Minority of the Convention of Pennsylvania, Martin’s speech, etc.

While Madison was attending the Virginia ratification convention, his friend and co-author Hamilton remained in New York. At the time of Hamilton’s last offering, six states of the necessary nine had ratified the Constitution; by now eight had, and while it was considered to be a close call in Virginia, the sentiment in New York was clearly running against ratification.

So back into the battle rides Hamilton. While nine states of the existing thirteen would be sufficient to ratify the Constitution according to the rules set up in closed debate at the Philadelphia Convention, the Articles of Confederation stated that any such change would require unanimous approval, not approval by a two-thirds majority, a fact that shored up the accusations by anti-Federalists such as Patrick Henry that the Convention had clearly exceeded its authority. Moreover, as the two most populous and wealthy states, Virginia’s and New York’s opinions in the matter carried a weight considerably greater in terms of public opinion than merely two votes of thirteen.

Thus on to the Judiciary. Hamilton once again provides his readers with an analytical plan at 6, of which the first point, the mode of appointing judges, was dealt with in his previous papers on the appointment of other “officers of the Union” by the Executive to the extent that Hamilton now considers a rehash to be “useless repetition” (7).

The second topic covers the tenure of the judges in office and their relation to the other branches of government. These are themselves related. The provision for the holding of office “during good behavior” is, says Hamilton, not an innovation but the practice in several of the “most approved” state constitutions. But it is a relatively “modern improvement” (11).

¹² In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.

A natural check and balance, yes, but it is clear from the wording that in Hamilton’s mind here, and again at the discussion beginning at 26, that the principle of judicial review will not await a Marbury v Madison but is already contained within the established body of the Constitution. The tenure in office is, he argues, a strengthening of the Judiciary made necessary by its inherently weaker position than that of the Legislative or Executive, and he cites Montesquieu to that effect: the imagery is that of an executive that holds “the sword of the community” (15) and a legislative that “commands the purse” (16).

¹⁷ The Judiciary, on the contrary, 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.

It is lovely metaphor, but as an argument it is not altogether sound even in theory, Montesquieu despite, for a judiciary denied the sword and the purse does enjoy the final say on the law in a government that is designed to be one of laws, not of men. It is evident then that the strength of this argument rests on the inherent passivity of the Judiciary: by design, it cannot consider that which is not brought before it. It is this point that fails in the face of an activist court that presumes the power of the Legislature from the bench.

That passivity, however, is evident in the dependence of the Judiciary upon the Executive to enforce its judgments. That is the only one of Hamilton’s arguments on the point of the weakness of the Judiciary that appears to have stood the test of time. However, it remains his contention that in the face of that weakness “nothing can contribute so much to its firmness and independence as permanency in office” (23).

He now moves to a point that makes it one of the critical entries: where the Judiciary, especially the Supreme Court, sits in relation to the Legislative on the matter of validating or rejecting law.

²⁹ It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void.

Not so, says Hamilton, for the measure of both is the Constitution, which is the expression of that which is superior to both branches of government, the will of the people (42).

⁴⁰ ...or in other words the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

In support of this point, Hamilton has repeated his insistence that the Legislative cannot act outside “any particular provisions in the Constitution” (34) and that it is the job of the courts to see that this is the case. The anti-Federalists have already made the point that this implies that an encroachment on the power of the federal government will meet resistance only within the federal government, an untrustworthy guardian of power against itself. Hamilton replied in Federalist #28 that the ultimate recourse against this sort of double betrayal would be by the people itself.

^#28-23 If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self defense which is paramount to all positive forms of government...

The root of Hamilton's argument, therefore, is that (1) the Constitution represents the will of the people, and that (2) its keeping resides ultimately within the people should it not be upheld by agents of the government whose design it is; that (3) the Judiciary must measure acts of the other branches of government by it, and (4) that in doing so the Judiciary fills a complementary, and not a superior role within that government.

A reader comforted with that clear line of theory will be jarred by what follows. First is a discussion of primacy in the comparison of conflicting statutes (44), and the notion that just as a superior court’s previous decision may be upheld in the face of an inferior court’s modification, so too must the Constitution be held supreme in the face of Legislative encroachment. But the underlying premise of this train of logic is that the Constitution is the will of the people, and what Hamilton says next undercuts this foundation by noting the obvious: what if the will of the people differs at one moment or another with that will that was laid down in the Constitution? Is it the case that the original will of the people has primacy over the current one? Yes, says Hamilton.

⁶⁰ Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution, would on that account be justifiable in a violation of those provisions...

Precisely what Hamilton means by “solemn and authoritative act” is unclear. Possibly he is referring to an insurrection as in Federalist #28, but more likely to the proper form of amending the will of the people by amending the Constitution that reflects it. Hamilton does recognize the potential for an activist court, and not entirely with disapproval.

⁵⁶ 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.

⁶³ ...the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.

To recapitulate this train of thought, to Hamilton the Judiciary acts as a safeguard of the will of the people as delineated in the Constitution against the will of the people as expressed within their representatives in the Legislative, holding firm on the notion that a formal process must be adhered to in order to change the former in preference to the latter. So much is clear and logical. This, however, places the will of the people in the keeping of that Legislative, Judicial and Executive process that is ostensibly its inferior. Hamilton is arguing perfectly reasonably that ephemeral political enthusiasm ought not to cause instability in the government, but in doing so he has shown that it is not the actual will of the people that has primacy but the federal government’s interpretation of it, and that the interpretation that counts is that of the Judiciary.

It is a profoundly statist view of government. The original theory was that the abuses of direct democracy could be mediated by representative government, and here, that the expression of the will of the people through its representatives is further to be mediated by a non-elected body within that government, and finally, that the ability of the people to amend the original expression of their will is to be placed under the mediating influence of the government itself! No wonder the anti-Federalists were howling.

This is to be a lengthy series of pieces, as is evidenced by Hamilton now turning to other arguments in favor of tenure in office based on “good behavior” and essentially leaving the matter truncated. These arguments include the special qualifications necessary for the office, including legal education and the necessity to study what will inevitably become “a voluminous code of laws” (75), as well as an equally voluminous set of “records of...precedents” that compose the bulk of a modern day law student’s education. Overly periodic appointments, Hamilton states, would risk danger through the necessary involvement of the other branches of government (73), as well as draining the pool of persons with both the necessary prerequisites of education and integrity (78). Here he stops, assuring the reader that the principle is also upheld by the experience of Great Britain in the matter but going no further to cite specifics.

At 14 through 18, Hamilton argues that the Judiciary is the weakest branch and constitute the least danger to political rights, lacking the power of sword and purse. Yet judges have ordered court-appointed masters to take over government functions and have even ordered sovereign bodies elected by the people to pass taxes to fund schools. Something went wrong somewhere. How did it happen?

Prevailing attitudes and behavioral norms deteriorated. Being without pocket or purse renders a body harmless only in an environment where telling a branch of government to "Go fsck yourself" is realistically considered as an option. We and our ancestors have lived in a prosperous, peaceful society for centuries. We've become "nice" and "civilized", not to mention that generations have been indoctrinated by the schools that the feral government is the all-knowing, beneficent source of goodness and light. The MSM maintains a constant drumbeat not only on specific issues but casts any anti-government group as kooks and "extremists". Nice people who wear nice clothes and live in nice houses don't have defiance at the top of their list, so now all the judiciary has to do to tyrannize is fire up the word processor.

and how can it be fixed?

Tough question. Start by getting the feds out of schools, as they should be anyway. I've wondered for a long time where the conservative George Sorii are and why they aren't buying up media by the boatload. Branches of government in conservative hands can both help on specific issues and reeducate by using the "fsck yourself" method once in a while.

I tend to read the Federalists from my leather-bound volume of the essays, and found that this one had many penciled-in notes and brackets from my previous readings.

Some points of Hamilton's were very strong, 59-62 especially so.

Hamilton's comments on the will of the people teams with that day's belief that the government will be limited and charged the judiciary above all others with enforcing the limitations. It is that belief that fostered the Constitution and the Declaration of Independence. I do not believe that Hamilton would attempt to justify a takeover by a large faction which wanted to thwart liberty or independence.

But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution where legislative invasions of it had been instigated by the major voice of the community.

Fortitude? Let's see if the justices attend the State of the Union speech.

I temper my views on Hamilton with this essay. Although he wanted a powerful federal government, he wanted its scope to be limited. His fault was that he did not place enough trust in the craft of man, who eventually set up a series of events which led to the corruption of the judiciary.

I can’t stand Hamilton. I can’t even read all of what he writes. Phrases like, "It proves incontestably," "truly distinct" or "all possible care" are used when one needs to hide from disagreement. The first question to him should be, "Who the heck are you to decide what is incontestable, true and possible?" I think he would be too weak to defend it. Washington was right to give him command only once. He was not a leader.

I'm glad I'm not the one who should maintain objectivity while wading through his bull.

Discussion Topics

* At 14 through 18, Hamilton argues that the Judiciary is the weakest branch and constitute the least danger to political rights, lacking the power of sword and purse. Yet judges have ordered court-appointed masters to take over government functions and have even ordered sovereign bodies elected by the people to pass taxes to fund schools. Something went wrong somewhere. How did it happen, and how can it be fixed?

How did it happen? Humans are humans. We are all sinners. Some judges filled with, at best, self-righteousness and others with meanness decided that "as the court of last resort" that they had the final say on what should and should not happen. That is the natural tendency temptation of their day to day environment.

What to do about it? First, good people must be appointed but we can’t tell beforehand how good our judgment might be. In fact, as the effect of the USSC’s opinion has grown, the confirmation process has gotten more brutal thus nominees’ records have gotten thinner. Second, as I said on another Book Club Report, the quickest thing that can be done for congress to pass a resolution reminding the USSC that their role is to negate rather than extend law. If that isn’t enough, congress can impeach them. Yet that is difficult given precedence and the ugliness of the act. In the end, it can be attenuated but not eliminated.

* At 21, Hamilton argues that the courts cannot prove a threat to the people’s liberties. Yet a judge not only banned prayers at a graduation ceremony, but stated publicly that anyone caught praying at that ceremony would be arrested and imprisoned at the judge’s pleasure as part of contempt proceedings. How can this kind of judicial tyranny be fixed?

The first question is, who will arrest them for praying? That separation of enforcement from judgment is important. Failing that, again, impeachment.

BTW – Do Federal judges have their own police or the like? I don’t think so. The example you gave might have been a state court judge over interpreting federal law but with his own enforcement mechanism.

* At 24, Hamilton argues for the complete independence of the courts. But is that a good idea when courts take on legislative and executive functions? Shouldn’t there be a method for redress to other branches when courts write law?

Of course and we have pardons and other limitations like the separation of enforcement from judgment.

* At 36, Hamilton points out that the courts are to be the buffer between people and legislature to keep the legislature in check. But how can the courts be kept in check when they themselves abuse their authority?

There is no substitute for good people to check the judges. It’s up to our House and Senate which we elect.

* At 58, Hamilton argues for lifetime tenure for judges. Was this a design flaw? Should be it fixed, and how?

I’m not sure if it is a design flaw. The problem seems to lie in the USSC as all appeals can work there way to them. Lower judges can be idiots and the USSC will correct them. How to fix it? Well, on one hand God is the final decider of their term. Second, having judges serve a lesser term than what God might let them seems to be a good idea, but how long? Twenty years is the longest, I would think. I could see sixteen making sense too but a single president would end up appointing half of the USSC over eight years.

* Does the Supreme Court go far enough to prevent Congress from, or too far in enabling, the expansion of its enumerated powers? Is the solution to be found within the structure of the federal government, or outside of it?

Personally I think the USSC does not go far enough in negating law, too far in extending it. The solution is to be found within the constitution of course. It should be a standard question to nominees. "Legislating from the bench" is a nice catch phrase but more meat in the questioning would help. The Senate could stop being deferential to the Presidents choice of nominee.

“I do not believe that Hamilton would attempt to justify a takeover by a large faction which wanted to thwart liberty or independence. “

Newburgh Conspiracy
http://en.wikipedia.org/wiki/Newburgh_Conspiracy

Washington, in response to a letter from Alexander Hamilton said that while he sympathized both with the plight of his officers and men and with those in Congress, he would not use the army to threaten the civil government, a course which Washington believed would violate the principles of republicanism for which they had all been fighting. A small group of officers, led probably by Major John Armstrong, Jr., aide to Major General Horatio Gates, attempted to forestall Washington’s intervention, viewing him as too moderate; they would have forcibly installed Gates in his place as Commander-in-Chief. They published placards, the “Newburgh Addresses,” calling for a meeting on March 12. They warned that come peace Congress would ignore them as they “grow old in poverty, wretchedness and contempt.”[4]

Hamilton of course, played the snake in the grass,
http://books.google.com/books?id=4iafgTEhU3QC&pg=PA177&lpg=PA177&dq=Hamilton+was+coaxing+washington&source=bl&ots=v5wryL8ivp&sig=GxNnopKKxhQ73PWreDhfrYkhbVg&hl=en&ei=DTs-Tf2HC8atgQfoxbinCA&sa=X&oi=book_result&ct=result&resnum=1&sqi=2&ved=0CBMQ6AEwAA#v=onepage&q=Hamilton%20was%20coaxing%20washington&f=false

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