Federalist 78 & Brutus XV

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READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How do Brutus XV and Federalist 78 illustrate the differences of opinions regarding the power of the national government, specifically the judicial branch?

Learning Standards:
CON-5.A: Explain the principle of judicial review and how it checks the power of other institutions and state governments.

CON-5.A.1: The foundation for powers of the judicial branch and how its independence checks the power of other institutions and state governments are set forth in:

• Article III of the Constitution 
• Federalist No. 78 
• Marbury v. Madison (1803)

The debate over what the judicial branch should look like stretches back to the early days of the republic. Today, we are going to be looking at an Anti-Federalist view of the newly proposed constitution and its judicial powers, as well as Hamilton's defense of the judiciary in Federalist 78.

Debate Questions:

1)Be it resolved that Supreme Court Justices shall serve for terms of seven years but can be reappointed for an unlimited number of terms.

2) Be it resolved that all federal judges shall be elected by a general vote of the people for limited terms of office

Discussion Questions (read the above essays with these questions in mind):

1. According to Brutus, how does the Supreme Court of the United States differ from the highest court in England?
2. What is Brutus's attitude toward the Supreme Court of the United States? Find specific statements to support your opinion.
3. The Constitution helped to ensure judicial independence, in part, by having judges be appointed instead of elected, and by giving them a life term. Using Federalist #78, explain Hamilton’s arguments for appointment of judges and life terms. Why did he think that these things made the judiciary more independent? Why was this independence so important according to Hamilton? 
4. In the course of making his arguments in Federalist #78, Hamilton notes that “. . . the judiciary is beyond comparison the weakest of the three departments of power. . .” and that as such it can “never attack with success either of the other two.” After reading Federalist #78,  explain the reasons that Hamilton gave in support of his claims above. You should also consider whether this statement rings true today, given changes in society (access to information, the media, etc.).
5. How does Hamilton defend the use of judicial review?  If the judiciary can override laws passed by the legislature, then the judicial branch must be above the legislative branch—What does Hamilton say about this?

There is growing concern over the life tenure of federal judges, including several proposals to limit judges to set terms. The articles and videos below explore some of the criticisms and proposed reforms.

Revising the Constitution: We Need Term Limits for Federal Judges

Running the Numbers on Supreme Court Term Limits

Should the Constitution be amended to limit judicial terms? Why or why not?


Here's a HipHughes video to help you understand Federalist 78 and the independence of the judiciary.