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Federalist #78

     
-The judiciary has the least power to be tyrannical

                It has no power over the sword (force) nor the purse (money)

                It only offers judgment (and requires the executive to enforce its judgment)

-The judiciary is the weakest of the branches because it cannot attack the other two and needs to be careful when defending itself.

-While the judiciary will not be the source of tyranny an independent judiciary is needed to guarantee liberty

-The life-term nature of the Supreme Court gives the court independence from the other branches and is thus vital

-The independence of the courts are essential

-There are certain limits to legislative power

                no bills of attainder

                no ex post facto laws

                etc…

-These limitations can be preserved only through the courts “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

-Some questions have arisen over whether the courts are superior to the other branches; after all, can’t the court void legislative and executive acts?

But:

1) No act can be valid if it is in violation of the constitution (i.e. the social contract)

2) To say otherwise would mean the Congress is the law of the land, not the Constitution

3) That would mean that the representatives have more power than the people

-But can’t the legislature be its own judge of constitutionality?

-That would allow the legislature to substitute its will for the people’s

-The courts were designed to be an intermediary of the people to ensure that the legislature does not exceed its authority

-Only the courts are qualified to interpret the law – so it is the Supreme Court’s job to discern the Constitution’s meaning, discern a law’s meaning, decide if there is a conflict, and then invalidate a law if it conflicts with the constitution (so the peoples will exceeds their representatives)

-This does not mean that the judiciary is superior to the legislature – just that the people’s will (as expressed in the Constitution) is superior to the legislature’s will (as expressed in statute)

-If the court is to act as an effective bulwark against legislative encroachment then lifetime tenure is a must

-The judiciary also acts to temper the temporary excesses of the majority (and the endangerment of minority rights)

-Of course, the people have the right to write a new constitution if it is inconsistent with their happiness”

-But if the people, on a whim, act against the constitution – then the judiciary should defend the document, even though it may be difficult to oppose popular legislation

-The judiciary will act as a protector of minority interests

-The court will mitigate laws that arise

-The legislature will modify unjust laws even before passing them because they will want to avoid judicial action – this helps create a better character of the government