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Contact Us Home February 22, 2017
"Allowing would-be judges to beg for cash and to make campaign promises about how they will decide cases tarnishes an institution that must be above reproach."
Washington Post editorial
 

The Founders & Our Courts

"The interpretation of the laws is the proper and peculiar province of the courts. ... Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."

Alexander Hamilton, Federalist Paper No. 78

 

When the nation’s founders established the federal court system, they went to great lengths to create a branch of the government that was accountable to the law, and not to political interests or hot-burning public passions.

As detailed in the Federalist Papers, and in James Madison’s notes of the 1787 constitutional convention, the founders took at least three steps to put a protective bubble around the courts:

  • They gave federal judges lifetime tenure, so that they would not have to look over their shoulders whenever addressing controversial cases.
  • They prohibited Congress from reducing judges' salaries, to prevent economic coercion of judges.
  • The convention rejected any legislative veto of federal court decisions. Court decisions were final, although Congress retained the power to enact new laws in the face of unfavorable rulings.
     

Two other points are worth noting, though they don't provide definitive answers to modern-day disputes.

1) The nation’s founders chose to appoint judges, not elect them. Their system, presidential appointments confirmed by the Senate, remains in effect today for federal judges, and all 13 original states also appointed judges. The first election of state Supreme Court justices was not established until nearly 50 years later. Mississippi became the first such state in 1832.

2) The phrase “judicial review” does not appear in the Constitution, and the right of courts to overrule unconstitutional laws was not formally declared until 1803, in the Supreme Court case Marbury v. Madison.  But Alexander Hamilton made it clear (see quote above) that he expected courts, not Congress, to have the last word on whether a law is constitutional. 
 

 
 
 
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