"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this can not be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents....
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humours 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 mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."[59]
This argument for an independent judiciary, which has been adopted by all writers who have attempted to defend the system, may be summarized as follows:
The Constitution being the solemn and deliberate expression of the will of the people, is the supreme law of the land. As such it enumerates the powers of the several branches of the government and sets limits to their authority. Any act, therefore, on the part of the agents or representatives of the people, which exceeds the authority thus delegated, is in violation of the fundamental law and can not bind those whom they profess to represent.
These checks upon the agents and representatives of the people can not be enforced, however, if each branch of the government is to be permitted to determine for itself what powers the Constitution has conferred upon it. Under such a system Congress would overstep the limits which have been placed upon its authority and substitute its own will for the will of the people. To prevent this the framers of the Constitution placed the courts, in their scheme of government, between the people and the legislature and gave them power to determine and enforce the constitutional limitations on the authority of Congress. This put the Constitution and the rights and liberties of the people under the protection of their natural guardian, the Federal judiciary, and thereby secured the people against the danger of legislative tyranny.
We must not forget the circumstances under which Hamilton wrote this defence of the Federal judiciary. Although the Constitutional Convention had spared no pains to prevent the publication of its proceedings, the feeling was more or less general that the whole movement was a conspiracy against popular government.
"The charge of a conspiracy against the liberties of the people," said Hamilton, "which has been indiscriminately brought against the advocates of the plan [the Constitution], has something in it too wanton and too malignant not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye have been of a nature to demand the reprobation of all honest men."[60]
The evidence now accessible to students of the American Constitution proves that the charges of "concealments and misrepresentations" made with this show of righteous indignation against the opponents of the Constitution might have justly been made against Hamilton himself. But knowing that the views expressed in the Federal Convention were not public property, he could safely give to the press this "refutation of the calumny."
The publication of the debates on the Constitution at that time would have shown that the apprehensions of the people were not entirely without justification. The advocates of the new form of government did not propose to defeat their own plans by declaring their real purpose—by explaining the Constitution to the people as they themselves understood it. For it was not to be supposed that the people would permit the adoption of a form of government the avowed object of which was to limit their power. Therefore the conservatives who framed the Constitution and urged its ratification posed as the friends of democracy. Professing to act in the name of, and as the representatives of the people, they urged them to accept the Constitution as a means of restraining their agents and representatives and thereby making their own will supreme. It was not the aim of these articles, written, as they were, to influence public opinion, to explain the real purpose of the Constitution, but rather to disguise its true character.
In this species of political sophistry Hamilton was a master. It is, to say the least, strange that the misstatement of historical facts, false analogies and juggling of popular catch-words which constitute his defence of the Federal judiciary should have been so often referred to as an example of faultless logic and a complete vindication of the system. Hamilton's interpretation of the Constitution as contained in these articles was merely for popular consumption, and not a frank and unequivocal expression of what he himself really believed. He was an uncompromising opponent of democracy and considered the English government of that day, with its hereditary monarchy and aristocracy, the best form of government ever devised.[61]