I am just aghast at what conservatives are saying about Alexander Hamilton. Phyllis Shafley and others are claiming that Hamilton believed the judiciary should be the weakest of the three branches, by implication intending the courts to be passive in the face of the other two branches or popular opinion.
Which is the reverse of what Hamilton said about the courts. This really is unbelievable.
Shaffley is pointing to a clause in Federalist #78 to support her claim. She is typical of bad students in that she never really finishes reading anything. Federalist #78 is an article defending the independent power of the courts. In it he lays the groundwork for the concept of judicial review. John Marshall acknowledged that his Marbury v. Madison decision was little more than a repeat of Hamilton’s argument in the Federalist Papers.
In the now infamous phrase, Hamilton was arguing that the courts, because they had so little concrete institutional support, were actually the safest place to put political power. Since they had neither the purse nor the sword, there was less risk of them assuming too much power. Furthermore, the Congress and the President were both likely to become vehicles for tyrannical popular passions, while the professionalism and tenure of judges rendered them immune to such pressure. So for Hamilton, the courts were invaluable bulwark of individual liberties in the face of tyrannical government.
So rather than claiming the Supreme Court should be a toothless institution, Hamilton was in reality one of the earliest, most vigorous, and most influential champions of the idea that the courts hold a crucial place in the American political system, or indeed any system that wants to preserve political stability and personal freedom.
Of course, conservatives no longer believe in either of those things, which is why they have to pervert the words of poor Hamilton. Hasn’t that man suffered enough without being drafted into the cause of Rush Limbaugh and Tom DeLay?
The so-called Federalists (more like Whigs in drag) are anything but supporters of federalism as explained by Hamilton, Madison, and Jay. Mr. DeLay, for example, would have us believe that if the judges do not subordinate themselves to the will of the Congress, they are usurping their constitutional authority and should be punished accordingly. As you noted, however, Federalist No. 78 (attributed to Hamilton) justifies the lifetime appointments of federal judges as an “excellent barrier to the encroachments and oppressions of the representative body.”
I think that this latest faith-based constitutional interpretation by the unrepentant right is really illustrative of the concerns of Hamilton as expressed in Federalist No. 78, viz. a need for checks against the corruption of absolute power. The republicans now control the executive and legislative branches and are still feeling their oats from the recent election “mandate” of President Bush. The right wing of the party wants no checks whatsoever on their power. Judging from the recent statements of Vice President Cheney and the forced (and disingenuous) recanting by Mr. DeLay, I suspect this wind will blow over quickly as the right wing of the republican party marches blindly over its cliff of hubris.