Antifederalist No. 80See the Headnote to Antifederalist No. 78-79. The following is from the
eleventh essay of "Brutus" in The New-York Journal, January 31, 1788.The nature and extent of the judicial power of the United States, proposed
to be granted by the constitution, claims our particular attention.Much has been said and written upon the subject of this new system on
both sides, but I have not met with any writer who has discussed the judicial
powers with any degree of accuracy. And yet it is obvious, that we can gain
but very imperfect ideas of the manner in which this government will work,
or the effect it will have in changing the internal police and mode of distributing justice at present subsisting in the respective states, without a thorough
investigation of the powers of the judiciary and of the manner in which they
will operate. This government is a complete system, not only for making, but
for executing laws. And the courts of law, which will be constituted by it, are
not only to decide upon the constitution and the laws made in pursuance of
it, but by officers subordinate to them to execute all their decisions. The real
effect of this system of government, will therefore be brought home to the
feelings of the people, through the medium of the judicial power. It is,
moreover, of great importance, to examine with care the nature and extent
of the judicial power, because those who are to be vested with it, are to be
placed in a situation altogether unprecedented in a free country. They are to
be rendered totally independent, both of the people and the legislature, both
with respect to their offices and salaries. No errors they may commit can be
corrected by any power above them, if any such power there be, nor can
they be removed from office for making ever so many erroneous adjudications.The only causes for which they can be displaced, is, conviction of treason,
bribery, and high crimes and misdemeanors.This part of the plan is so modelled, as to authorize the courts, not only to
carry into execution the powers expressly given, but where these are wanting
or ambiguously expressed, to supply what is wanting by their own decisions.That we may be enabled to form a just opinion on this subject, I shall, in
THE POWER OF THE JUDICIARY
|1st. Examine the nature and extent of the judicial powers, and|
|2nd. Inquire, whether the courts who are to exercise them, are so constituted as to afford reasonable ground of confidence, that they will exercise
them for the general good.|
With a regard to the nature and extent of the judicial powers, I have to
regret my want of capacity to give that full and minute explanation of them
that the subject merits. To be able to do this, a man should be possessed of a
degree of law knowledge far beyond what I pretend to. A number of hard
words and technical phrases are used in this part of the system, about the
meaning of which gentlemen learned in the law differ. Its advocates know
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: The Antifederalist Papers.
Contributors: Morton Borden - Editor.
Publisher: Michigan State University Press.
Place of publication: East Lansing, MI.
Publication year: 1965.
Page number: 226.
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