Most of the federalist papers published by Alexander Hamilton were advocating the ratification of the constitution of the United States. In federalist paper number 78, he argues that each of the three branches of government should be the concluding judge of the constitutionality of the actions for which each of them is responsible. Since we cannot trust legislature to check itself, the courts should have the power to do so. Courts should always reschedule the judgment of an elected representative. Judges cannot check on the president since he is the appointing authority. He is the one who appoints the judges. He further argues that judges should have life tenure. This is not only a requirement but also a requisite.
I am not satisfied with Hamilton’s argument. He proposes that each branch of government should be responsible for its actions, which is not right. There should be a way in which the powers of the executive, judiciary and the legislative are checked so that they do not overstep constitutionally prescribed limits. The legislative and executive should be responsible for checking the power of the court. For illustration, the Supreme Court has power to enforce the decisions it makes. If it passes constitutional laws, which are not popular law, the legislature might decide not to aggressively enforce it. It might not spend money on enforcing Supreme Court decision. Secondly, judges should have the responsibility of checking the other branches. Since they cannot check the executive due to its appointing responsibility, they should particularly check the legislative. If the legislative branch oversteps its constitutionally approved boundary, the court should raise an alarm. In order for this delicate balance to exist, independence becomes vital. In addition, since judges have life tenure, they have complete independence.
The United States Supreme Court is not too powerful. It is in implementing its responsibility of checking the other organs that one might be misled to think that it’s too powerful. For instance, if it strikes laws passed the congress. The truth is that it has not done that because it is more powerful than the legislature but because the law was contrary to the constitution. The congress has overstepped its constitutionally approved boundary. The court is mandated with protecting the constitution therefore, it strike the law down. It declares such law as invalid.
Hamilton further illustrated that the judiciary, and that includes the Supreme Court is the weakest of the three branches. It does not have the power of the as the executive or the legislature. The executive is the commander in chief of the armed forces while the legislature approves all the spending measures of the government. Due to this weakness, the only option of protecting the court from the other two branches is by creating a permanent tenure for the judges. The tenure of the judges is permanent, permanency in office is mandatory during good behavior. Therefore, the judges cannot be changed with respect to the interests of a given branch of government. Hamilton also argued that due to the complexity of law a free society, it demand s that the judges are not replaced. Since only a few individuals posses the integrity and the knowledge required to judge the law, the few who adequate to be judges in the Supreme Court should be retained permanently.
From the above argument, it follows that not one of the branches of government is too powerful. Though independence is important, the other organs of the government check even the Supreme Court. The judges have life tenure in order to protect the independence of the court, but their decisions require the corporation of the legislature and the executive to be implemented.