The Role of the Judiciary

by Clint Bolick,

… the judiciary would cease to be the least dangerous branch of government if ever it were to accrete legislative or executive powers.

The idea of the judiciary as a watchdog for liberty is an often-overlooked part of our constitutional tapestry, but it was both breathtakingly original and breathtakingly radical in 1787. The idea that courts could invalidate a law or an executive action because it was contrary to the Constitution — this was an idea that really had never occurred to anyone before it occurred to our Founders. And, yet, it is vital to the preservation of our rights and to the notion of a government of defined and limited powers.

The very best exposition of what role the judiciary was intended to play in our constitutional republic was outlined by Alexander Hamilton in Federalist No. 78.

Hamilton said:

“No legislative act . . . contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they for-bid . . . Nor does this conclusion by any means suppose a superiority of the judicial to the legislative authority. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

That is the brilliant design that the Framers gave us for our judiciary. And in this regard, Hamilton called the judiciary “the least dangerous branch,” because in exerting its powers, it would only restrain the powers of the other two branches of government. But he did issue a very prophetic warning. He said that the judiciary would cease to be the least dangerous branch of government if ever it were to accrete legislative or executive powers.

More From CATO Institute: