Federalist #78

After reading my most recent post — Rick Santorum Doesn’t Understand Rights — the Tumblr user corroborate sent the following note:

“Except we all know that the judiciary exists in order to check the excesses that might occur as a result of the democratic process.” I think that if I were you, I’d re-read the Federalist papers.

It might be helpful to provide a brief reply.

I should begin by noting that I love any occasion to spend some time with Hamilton, Madison, and Jay. Federalist #78 has a lot to say about the importance of keeping the judiciary separate from both the legislative and executive branches of government.

There’s also this helpful paragraph, about majoritarian tyranny and the role of judges:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, 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 meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.