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. Wikisource has original text related to this article: As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable. It argues that the federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. The interpretation of the laws is the proper and peculiar province of the courts.
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. He goes on to make the case for permanent tenure and independence of the judges as the bulwark against legislative encroachment. Both Jefferson and Madison argued prior to that the states collectively had a right to declare laws unconstitutional. These considerations apprise us that the government can have no great option between fit characters; 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. Like all of The Federalist papers, it was published under the pseudonym Publius.
Hence it is that there can be but few fdderalist in the society who will have sufficient skill in the laws to qualify them for the stations of judges.
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. 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.
Some perplexity respecting the right 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.
The observation, if it proved any thing, would prove that there ought to be no judges distinct from that body. The judges must be independent to uphold the Constitution in the face of laws instigated by a major voice of the community. This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.
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.
There is no authority to review judicial decisions from the supreme court and no means for the legislature, executive or the people to correct this situation when it occurs as it has today.
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.
Federalist No. 78 – Wikipedia
The English solution to this problem was to condition the holding of office upon good behavior, as enforced by the people through the writ of scire facias. The legislature not only 7#8 the purse, tbesis prescribes the rules by which the duties and rights of every citizen are to be regulated.
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. Views Read Edit View history.
The interpretation of the laws is the proper and peculiar province of the courts. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: No legislative act, therefore, contrary to the Constitution, can be valid.
He goes on to make the case for permanent tenure and independence of the judges as the bulwark against legislative encroachment. 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. 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.
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.
Federalist Papers Summary 78
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.
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. 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.
It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; 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.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. 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.
In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life. As to the tenure by which the judges are to hold their places: These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.
The Avalon Project : Federalist No 78
Both Jefferson and Madison argued prior to that the states collectively had a right to declare laws unconstitutional. He says if this happens it only proves there should be no judges.
The only power of the judicial branch is the power of judgment:. 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 ghesis that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution.
As to the mode of appointing the judges: