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PSC 201: American Government

Serow (ed) Lanahan Readings in the American Polity, 4/e

Part 8: Judiciary, Student Outlines

compiled from student contributions (thanks) by Jeremy Lewis
Last revised 28 Nov. 2004.  Please click your Reload button to see the latest version.
43: Alexander Hamilton, "Federalist 78"
44: Eugene Rostow, "Democratic Character of Judicial Review"
45: David O'Brien, "Storm Center"
46: Peter Irons, "Brennan vs Rehnquist"

42: Alexander Hamilton, From The Federalist 78
By: Steven Witt, 2004

Some of the most famous Federalist papers belong to Alexander Hamilton, writing about separation of powers and federalism. Hamilton was a strong proponent of the courts’ power, and such, he believed that the Supreme Court should have the right to declare an act of Congress unconstitutional. In 1803, Chief Justice John Marshall established the precedent for the Supreme Court’s use of judicial review in the landmark Marbury v. Madison case. The year after Marshall’s decision, Alexander Hamilton was killed in a duel with Vice-President Burr.

· 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 capacity to annoy or injure them.
· Hamilton believes that as long as the judiciary remains truly distinct from both the legislature and the executive departments it will never endanger the general liberty of the people. Hamilton said this, “there is no liberty if the power of judging be not separated from the legislative and executive powers.”
· The complete independence of the courts of justice is peculiarly essential in a limited Constitution. Their duty is to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
· Rationally the courts were designed to be an intermediatebody between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. If there should ever be an irreconcilable variance between the two, the Constitution ought to be preferred to the statute.
· Hamilton believes that no man can be sure that he may not be tomorrow’s victim of the spirit of injustice and therefore applauds these judges who have acquired this uncommon portion of fortitude to remain faithful guardians of our Constitution.

42: Alexander Hamilton- From the Federalist 78
Tiffany Holley, 2002

-The most famous selections belong to James Madison, writing about separation of powers
and federalism.
-In #78, Hamilton expounded on the judicial branch.  He makes a strong case for an
independent judiciary, separate from the legislative and executive branches.
-Believed the Supreme Court should have the right to declare an act of Congress unconstitutional.
    -Judicial review
-The judiciary will always be the least dangerous to the political rights of the Constitution.
-Judiciary is beyond comparison the weakest of the 3 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 do defend itself against their attacks.
-It is continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.
-The complete independence of the courts of justice is peculiarly essential in a limited Constitution.
-No legislative act contrary to the Constitution can be valid.
-Constitution must be regarded by the judges as a fundamental law.
-Independence of the judges is equally requisite to guard the Constitution and the rights of
individuals from the effects of those ill humors which the arts of designing men, or the
influence of particular conjunctures, sometimes disseminate among the people themselves,
and which, though they speedily give place to better information, and more deliberate
reflection, have a tendency, in the meantime, to occasion dangerous innovations in the
government, and serious oppressions of the minor party in the community.

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43: Eugene Rostow, "Democratic Character of Judicial Review."
(Kelly Armstrong, 2000)

He wrote The Democratic Character of Judicial Review. His classic article remains as the most important analysis written on the theory behind the Supreme Court’s power. In his article, Rostow defends the Supreme Court’s use of judicial review as the essence of the American Democratic System. The Judicial Review is the ability of the Court to declare an act of Congress or the executive or state law unconstitutional. Rostow bases his argument on what is meant by a democracy. He believes that the US is a "polity" in which the majority rules and protections guaranteed for individuals and minorities.

Rostow states that the attack on judicial review as undemocratic rests on the premise that the Constitution should be allowed to grow without a judicial check. The proponents of this view would have the Constitution mean what the President, Congress, and state legislatures say it means. Rostow finds this view to be a grave oversimplification. He thinks that the purpose of the Constitution is to assure the people a free and democratic society. The final aim of the society is as much freedom as possible for the individual human being. The root idea of the Constitution is that man can be free because the state is not. The Supreme Courts Power exists as an integral part of the process of American Government. The Court has the duty of interpreting the constitution in many of its most important aspects. Rostow finds this way of policing the Constitution not undemocratic. The task of democracy is not to have the people vote directly on every issue, but to assure their ultimate responsibility for the acts of their representatives. He is in favor of the separation of powers. He thinks that it is error to insist that no society is democratic unless it has a government of unlimited powers. Constitutional review by an independent judiciary is a tool of proven use in the American quest for an open society.

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44: David O'Brien, from Storm Center
Tiffany Holley, 2002

-Denied the power of the sword or the purse, the Court must cultivate its institutional prestige.
-The power of the Court lies in the pervasiveness of its rulings and ultimately rest with other political institutions and public opinion.

-Dred Scott v. Sandford (1857) and Brown v. Board of Education (1954) illustrate the limitations of Supreme Court policymaking.
-Opposition to the school desegregation ruling in Brown led to bitter, sometimes violent confrontations.
-The political struggles of the Court continue after the writing of opinions and final votes.
-Announcements of decisions trigger diverse reactions from the media, interest groups, lower courts, Congress, the President, and the general public.
-When deciding major issues of public law and policy, justices must consider strategies for getting public acceptance of their rulings.
-Public opinion serves to curb the Court when it threatens to go too far or too fast in its rulings.
-The Court has usually been in step with major political movements, except during transitional periods or critical elections.
-Life in the marble temple is not immune from shifts in public opinion.
-The justices deny being directly influenced by public opinion.
-In most areas of public law and policy, the fact that the Court decides an issue is more important than what it decides.
-As a guardian of the Constitution, the Court sometimes invites controversy by challenging majoritarian sentiments to respect the rights of minorities and the principles democracy.

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Peter Irons, "Brennan vs Rehnquist "
by Bianca Scott, Fall 2009

-William Brennan and William Rehnquist both served on the Supreme Court between 1972 and 1990

 ~spent 18 years trying to sway the vote of the moderate justices
-agreed in only 273 of 1,815 cases
 ~lowest rate of agreement EVER among justices
- headed both the liberal (Brennan) and conservative (Rehnquist) wings, respectively
-was a battle of individual/minority rights vs majority power
-book describes Supreme Court as a political institution and deciphering the Constitution as a form of politics
~idea isn’t new; Toqueville says that “hardly any [political] questions arise that isn’t resolved in a judicial question.”
William Brennan: individual
-used due process clauses to get his points across
 ~says they were designed to limit govt authority by protecting life, liberty, and property
-says Constitution required officials to treat citizens not as subjects but as fellow human beings
-Due process asks whether…
1) govt has treated someone fairly
2) individual dignity has been honored
3) worth of the individual has been acknowledged
-officials can’t answer the question by just making a set of rules, can only do it by more complex means [examining the individual]
-due process as society changes, not static
 ~judges must take what they have learned and make decisions based on that
-says majority rule doesn’t work because it ignores minority rights
-judges should speak for community and not themselves
 ~must decide which “community” is relevant
  *i.e local, state, national, race, religion, etc
William Rehnquist (majority)
-in his Texas speech titled “The Notion of a Living Constitution”, he expressed his views
-one personal conviction is no better than another one
-a strict interpreter of the Constitution
-does not agree with the power of judicial review so much
-majority rule is supreme because it assumes a general acceptance in society
-believes in legal positivism
 ~legal positivism is the notion that legislative will is supreme and content of law is not judges concern
-positive majorities must enact this positive law
*even though both justices offer very persuasive arguments, in the end the decision is ours

45: Peter Irons- Brennan vs. Rehnquist
Tiffany Holley, 2002

-The Due Process clauses of the Constitution, added by the 5th and 14th
amendments, were designed to limit governmental authority by protecting the
"life, liberty, or property" of Americans from arbitrary official action.
-The Constitution required officials "to treat citizens not as subjects but as
fellow human beings."
-"due process' is a concept whose meaning is not static, frozen by the
Framers in 1787, but one that changes over time, as society changes.
-"The view that all matters of substantive policy should be resolved through the
majoritarian process." he says, "has appeal under some circumstances, but I
think ultimately it will not do."
-When those outcomes-in voting booths and legislative chambers-display
prejudice against the "outsiders" in American society, the Constitution
requires judicial intervention.
-The defense of minority rights does not lead Justice Brennan to advocate
replacing what he calls legislative "imperialism" with an equivalent judicial
-Brennan agrees that allowing unelected judges to reverse the decisions of
elected lawmakers goes against the grain of democratic government.
-Political majorities are entitled to enact "positive law" and to impose their
moral views on minorities.
-Supreme Court justices are placed on the bench by elected officials who
owe their positions to the electorate.

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