Academic journal article Constitutional Commentary

Federalist No. 78 and Brutus' Neglected Thesis on Judicial Supremacy

Academic journal article Constitutional Commentary

Federalist No. 78 and Brutus' Neglected Thesis on Judicial Supremacy

Article excerpt

Just three years ago the United States marked the bicentennial of Marbury v. Madison, the celebrated case that established the principle of judicial review in 1803. The novelty of a court asserting authority to declare laws unconstitutional was labelled by the noted historian Charles Beard as "the most unique contribution to the science of government which has been made by American political genius." (1) The occasion of the anniversary prompted a considerable outpouring of scholarly articles on the subject of judicial review, (2) many of them focusing on the question whether the Rehnquist Court had not strayed from the generally accepted parameters of judicial review as recognized by the Court since the late nineteen-thirties. (3)

It is noteworthy that whenever Marbury v. Madison is discussed in works on constitutional law, text books or case books, reference is invariably made to Alexander Hamilton's discussion of judicial review in Federalist No. 78 as an early indication that the principle was regarded as a fundamental part of the system of government set up under the Constitution. (4) Surprisingly, these works, almost without exception, fail to refer to the Antifederalist Letters of Brutus to which this number of the Federalist Papers constitutes a response. (5) This is a regrettable omission since No. 78 cannot be properly understood except in the context of Brutus' charge that the Constitution provided, not only for judicial review, but for judicial supremacy. (6) Federalist No. 78 (and succeeding numbers) represent merely the other half of a dialogue over the claim that judicial supremacy is inherent under the Constitution. Moreover, Brutus' views on judicial supremacy constitute a novel thesis which, to date, have not been sufficiently appreciated in the literature. (7) Hamilton's counterargument (mainly in Federalist Nos. 78 and 81), viewed in the light of Brutus' thesis, is seen to obfuscate the issue of judicial supremacy and, in effect, leaves Brutus' thesis unimpaired.


Perhaps the first thing to note is that Brutus did not question the right of the courts to exercise judicial review.

   [I]f the legislature pass laws, which, in the judgment of the
   court, they are not authorised to do by the constitution, the
   court will not take notice of them; for it will not be denied,
   that the constitution is the highest or supreme law. And the
   courts are vested with the supreme and uncontroulable
   power, to determine, in all cases that come before them, what
   the constitution means; they cannot, therefore, execute a law,
   which, in their judgment, opposes the constitution, unless we
   can suppose they can make a superior law give way to an inferior.

In acknowledging that judicial review was within the province of the court, Brutus went on to outline the corollary: "[T]he judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers [since] the legislature ... will not go over the limits by which the courts may adjudge they are confined." (9)

What concerned Brutus, in the first instance, was the use to which the court would apply judicial review in the service of national consolidation and how this would threaten the independence and survival of the states. The judicial power, Brutus warned, would operate to affirm and legitimate all the invasions of state power committed by the national legislature. "The real effect of this system of government, will ... be brought home to the feelings of the people, through the medium of the judicial power." Therefore, he said, it was

   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. … 
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