said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.[1]
The Constitution’s separation-of-powers principle, Hamilton argued, gave courts the power of “judgment” so that they could act as “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.”[2]
Federalist 78 was one of many political commentaries that were printed in newspapers and sold as pamphlets while the ratification debates were taking place. Tracts defending and criticizing the Constitution circulated through the markets, coffeehouses, shops, and parlors of American towns. Not everyone who read Federalist 78 agreed with it. Some readers preferred the writings of “Brutus,” who “found the Constitution flawed in its ‘fundamental principles’ and advocated its rejection,” while others agreed with the “Federal Farmer,” in whose view the Constitution “included ‘many good things’ as well as ‘many important defects,’ and that ‘with several alterations’ it could create a ‘tolerably good’ federal system.”[3] By the time the Constitution began operating in 1789, Americans were already engaged in a broad and lively public debate about the role that courts should play in the new republic.[4]
The Constitution creates the fundamental law of the nation, understood to embody the will of the people. But as a written document, it depends on actual governmental institutions for its articulation and enforcement. Beginning in the founding era and continuing to the present day, the role of the Court in carrying out this fundamental law has been contested. Over the intervening centuries, the place of the Court in the American system has changed.
Four themes are especially vital to understanding modern debates concerning the current role of, and potential reforms to, the Supreme Court:
- the persistence of debates over restructuring or reforming the Court, even as the nature and content of these debates have varied over time;
- the tension in the Court’s role, insofar as it is both one of three co-equal branches of the federal government and also the arbiter that sees itself as responsible for resolving disputes among the branches and otherwise determining the meaning of the Constitution;
