[Marxism] Originalist Alexander Hamilton on an independent judiciary

Brian Shannon Brian_Shannon at verizon.net
Thu Oct 6 22:32:53 MDT 2005

The following Hamilton quote is from an essay on the veto power of the 
president. The reasoning supporting the importance of an independent 
judiciary reflects his ideas about the judiciary and its role under the 
proposed constitution with its unique separation of powers. Of course, 
the purpose of the separation of powers is intentionally reactionary. 
In various passages of the Federalist Papers, Hamilton and Madison 
openly discuss the importance of curbing any momentary enthusiasm by 
the representatives of the people though the structure of Senate, the 
Presidency and the judiciary.

However, the selection below represents a refreshing idealism, 
appropriate to a new nation and the creation of a republican form of 
government. The reasoning is comparable to the naîve creation of what 
has become known as the "electoral college," which was expected to be a 
selection of highly qualified men who would sit down and help choose 
the best person possible as president of the United States.

Here Hamilton reflects the common view at the time that the judiciary 
should be made up of legal thinkers, who are independent of the 
influence of both the legislature and the executive. I have added a 
couple of perhaps unnecessary brackets to clarify the references. The 
expression "this part of their plan" refers to the executive power of 
provisionally vetoing acts of congress.

"I have in another place remarked, that the [constitutional] 
convention, in the formation of this part of their plan, had departed 
from the model of the constitution of [New York] State, in favor of 
that of Massachusetts. Two strong reasons may be imagined for this 
preference. One is that the judges, who are to be the interpreters of 
the law, might receive an improper bias, from having given a previous 
opinion in their revisionary capacities; the other is that by being 
often associated with the Executive, they might be induced to embark 
too far in the political views of that magistrate, and thus a dangerous 
combination might by degrees be cemented between the executive and 
judiciary departments. It is impossible to keep the judges too distinct 
from every other avocation than that of expounding the laws. It is 
peculiarly dangerous to place them in a situation to be either 
corrupted or influenced by the Executive."
— Alexander Hamilton, The Federalist No. 74

Brian Shannon

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