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. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. The interpretation of the laws is the proper and peculiar province of the courts. 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. 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. 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. 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. No legislative act, therefore, contrary to the Constitution, can be valid. 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. 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. 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. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Executive not only dispenses the honors, but holds the sword of the community. 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. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. 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. 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. Selected byĪccording 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. Madison (1803), Hamilton’s essay remains the most famous defense of judicial review in American history, and it even served as the basis for many of Chief Justice John Marshall’s arguments in Marbury itself.
And with judicial review, federal judges had the power to review the constitutionality of the laws and actions of the government-ensuring that they met the requirements of the new Constitution. With judicial independence, the Constitution put barriers in place-like life tenure and salary protections-to ensure that the federal courts were independent from the control of the elected branches.
On the other hand, he also emphasized the importance of an independent judiciary and the power of judicial review. On the one hand, Hamilton defined the judicial branch as the “least dangerous” branch of the new national government. On May 28, 1788, Alexander Hamilton published Federalist 78-titled “The Judicial Department.” In this famous Federalist Paper essay, Hamilton offered, perhaps, the most powerful defense of judicial review in the American constitutional canon.
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