THE NEW FEDERALIST

January 18, 1999

Pages 6-7

American Almanac

The Federalist:
The Battle for A More Perfect Union
by Robert Trout
"We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America."Preamble to the Constitution

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George Washington addressing the Constitutional Convention.

During the recent 30 years, American thinking has been dominated by an

ideology that promotes free trade and globalization as ideals which are
consistent with freedom and democracy. However, on the opposite side of
the globe, a group of nations, centered around China, have now undertaken
the creation of the Eurasian Land-Bridge, the world's largest development
project, and an excellent example of the proper role of government in the
American tradition. Unfortunately, when faced with the choice between
these two dramatically different futures, many Americans are incapable of
determining which path leads to survival and which leads to destruction. A
crash course in the principles of American System economics is required.
One of the best sources for such a crash course is The Federalist, also called
The Federalist Papers, which was written in the effort to secure the ratification of the U.S. Constitution back in 1787. The Federalist is a series of 85
essays authored by Alexander Hamilton, James Madison and John Jay, and
published under the pen name "Publius." These essays have held a key place
for 200 years in educating Americans on the Constitution. Until the babyboomer paradigm shift, The Federalist was required reading for most
students. Readers of these essays may be astonished at how far this country
has declined from the level of political debate that was employed in the
battle to establish this nation's Constitution.
The American colonies were a project by European republicans to establish a
society, free from the landed and financial aristocracy that dominated Europe. The first modern nation-state had been founded by Louis XI (r. 146183) in France. However, European republicans were unable to free the Old
World from the grip of the aristocracy, so the nations of Europe remained
only imperfect nation-states. It was only in America, where the oligarchical
hold was much weaker, that republicans were able to found the first true
nation-state, based on the Leibnizian ideal of "life, liberty, and the pursuit of
happiness."
Benjamin Franklin gave a humorous, and accurate account of the differences
in character between Europe and America in his 1784 essay, "Information to
Those Who Would Remove to America." Franklin wrote of America that,
"The Truth is, that tho' there are in that Country few People so miserable as
the Poor of Europe, there are also very few that in Europe would be called
rich: it is rather a general happy Mediocrity that prevails. There are few
great Proprietors of the Soil, and few Tenants; most People cultivate their
own Lands, or follow some Handicraft or Merchandise; very few rich
enough to live idly upon their Rents or Incomes; or to pay the high Prices

Benjamin Franklin

given in Europe, for Paintings, Statues, Architecture and the other Works of
Art that are more curious than useful." Franklin was certainly not against art
and learning, for he had personally made major contributions to promote
education, and America had achieved a level of literacy which was dramatically higher than in England. Franklin's remarks should be compared to
Friedrich Schiller's criticism of the aristocratic classes of Europe, as "barbarians" who had imposed an ideology of egoism and hedonism upon art and
culture. Franklin recommended that aristocrats not emigrate to America,
stating, "Much less is it advisable for a Person to go thither who has no other
Quality to recommend him but his Birth. In Europe it has indeed its Value,

but it is a Commodity that cannot be carried to a worse Market than to that

of America, where People do not enquire concerning a Stranger, What IS he?
but What can he DO?" Franklin states that aristocrats would fare poorly in
America, since it is a "land of labor" and aristocrats, like hogs, do no work.
Background of The Federalist Papers
During the recent years, "big government" has been a favorite whipping boy
for Conservative Revolution ideologues of the Newt Gingrich variety. However, as Hamilton, Madison, and Jay described in The Federalist, a new
Constitution was urgently required because the weak national government
that the Continental Congress had created in 1777, with the Articles of Confederation, had failed to provide for the basic needs of the new country.
America, which had just won the Revolution against the British Empire, was
in danger of being recolonized by British economic warfare. Following the
American victory in the revolution, and the Treaty of Paris of 1783, the
British, under the direction of Prime Minister Shelburne, launched an economic war against the new nation, and our ally, France, under the rubric of
"free trade." Manufacturing, which had grown up in America during the
revolution, was being wiped out by British dumping of cheap manufactured
goods. As Friedrich List later reported, the British were selling their goods
at lower prices in America, even after transporting them across the Atlantic
Ocean, than they were selling them in London or Liverpool. However,
American exports to Britain rose to only 50% of their pre-war level because
of British discrimination.
The weak American government of the Articles of Confederation was incapable of imposing a protective tariff to stop the blatant economic warfare.
Under that Constitution, a trade treaty had to be approved by all 13 states,
which proved to be impossible.
The national government was unable to honor the debts that it had contracted to finance the Revolution. The economic downturn, which resulted from
the British economic warfare, collapsed the tax base. The weak central
government was unable to impose needed taxes. As Hamilton stated in The
Federalist, unless the central government had the power to defend the nation
from this economic warfare, including by increasing tariffswhich he
recommended be tripledthe victory of the American Revolution against
colonialism would be nullified: "Destitute of this essential support, it must
resign its independence, and sink into the degraded condition of a province."

Even worse, the economic crisis was feeding separatist tendencies. For
example, the New York State government demanded that all taxes that the
State paid to the national government be earmarked to repayment of Revolutionary War debts issued by New York State. Hamilton wrote in The Federalist Essay 15, that a failure to adopt strong central government would lead
to the complete disintegration of the Union. Hamilton warned, "This is the
melancholy situation to which we have been brought by those very maxims
and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a
precipice, seem resolved to plunge us into the abyss that awaits us below."
Hamilton and Madison both warned that the break up of the Confederation
into sections would not bring peace, but would lead to wars among the
separated sections, more devastating than the wars that ruined Europe.
Even after the Constitution was drafted at the Constitutional Convention in
Philadelphia, its ratification was by no means certain. Alexander Hamilton,
who had played a key role in organizing support for establishing a new
central government, had been a delegate for New York State to the Constitutional Convention. However, in New York State, the opposition, which
was led by Governor George Clinton, was so stiff that the other two members of the New York delegation, besides Alexander Hamilton, walked out of
the Convention because they were opposed to the new Constitution. The
State Legislature and the majority of delegates elected to the Convention,
created to vote on whether New York State would ratify the Constitution,
were strongly opposed to the new Constitution. To secure the ratification of
the Constitution by New York State, Hamilton, Madison, and John Jay
teamed up to write The Federalist, which was published in New York
newspapers between October 27, 1787 and April 4, 1788.
Many Americans today, look back on this period in American history as a
time when individuals made history. Given the difficulty that he faced,
Alexander Hamilton recognized that the citizens of New York and the nation
would only be capable of rising above their petty concerns to ratify the
Constitution, if they were made conscious that their actions would have
dramatic consequences for present, future and past civilizations. In the
opening letter, Hamilton argues that the citizens must take responsibility for
a decision that will affect all of history: Can a people establish, as their own
government, a true republic?
It has been frequently remarked that it seems to have been
reserved to the people of this country, by their conduct and

example, to decide the important question, whether societies of

men are really capable or not of establishing good government
from reflection and choice, or whether they are forever destined
to depend for their political constitutions on accident and force.
If there be any truth in the remark, the crisis at which we are
arrived may with propriety be regarded as the era in which that
decision is to be made; and a wrong election of the part we
shall act may, in this view, deserve to be considered as the
general misfortune of mankind.
Throughout The Federalist, Hamilton and Madison repeatedly challenge
their readers to rise above petty considerations and measure their actions
against universal history. The reader is asked to compare the new American
government with examples from the last 2,000 years, going back to Ancient
Greece. The success or failure of the American republic will determine
whether the goal of republicans throughout history will be fulfilled. The
reader is challenged to show the same courage as Americans had shown in
previous periods of the country's history. Madison asked, "The first question
that offers itself is, whether the general form and aspect of the government
be strictly republican? It is evident that no other form of government would
be reconcilable with the genius of the people of America."
The First True Republic
The authors of The Federalist demonstrate that America will be the first true
republic, and that previous republics had been either flawed or not actually
republics. This gives their readers an overview which forces them to
recognize that their decision will have consequences for all of history.
The authors correctly denounce the English, Venetian, and Dutch "republics"
as false, because the "republican" institutions were merely masks to hide the
real control by an oligarchy. England, Madison stated, is dominated by a
monarchy and aristocracy (a situation which exists still today). Madison
ridiculed identifying Venice as a republic, stating, "The same title has been
bestowed on Venice, where absolute power over the great body of the people
is exercised, in the most absolute manner, by a small body of hereditary
nobles." Madison further praised the League of Cambrai, a concert of
European nations and the Vatican state, formed in 1509 against Venice,
"which gave a deadly blow to the power and pride of this haughty republic."
Madison described how the United Netherlands was a confederacy of
aristocracies, which was dominated by the financial aristocracy of Holland,

and how Holland "by her riches and her authority, which drew the others
into a sort of dependence, supplied the place."
Nowhere is the exceptional nature of America more clearly expressed than in
Hamilton's challenge to his countrymen to free the world from colonialism, a
conception which later became (American policy with the adoption of the
Monroe Doctrine of Secretary of State John Quincy Adams. Hamilton, in
Essay 11, challenged the American people to accept this mission:
The world may politically, as well as geographically, be divided
into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended
her dominion over them all. Africa, Asia, and America, have
successively felt her domination. The superiority she has long
maintained has tempted her to plume herself as the Mistress of
the World, and to consider the rest of mankind as created for her
benefit. . . . It belongs to us to vindicate the honor of the human
race, and to teach that assuming brother, moderation. Union
will enable us to do it. Disunion will add another victim to his
triumphs. Let Americans disdain to be the instruments of
European greatness! Let the thirteen States, bound together in a
strict and indissoluble Union, concur in erecting one great
American system, superior to the control of all transatlantic
force or influence, and able to dictate the terms of the
connection between the old and the new world!
The Federalist refutes both the supporters of pure democracy and those who
argued that the people are incapable of republican government. The claim
that people are incapable of governing themselves comes from "subjects
either of an absolute or limited monarch," who try to deride democracies by
citing as specimens of them, the turbulent democracies of ancient Greece
and modern Italy. Madison discusses at length the confederations formed by
the Greek city-states, and shows that their failure resulted from the lack of a
stronger confederation. This led first to anarchy among the members of the
confederation, and then to foreign subjugation. Madison suggests that, had
they united to form a nation-state, they could have avoided foreign subjugation and destruction: "Had Greece, says a judicious observer on her fate,
been united by a stricter confederation, and persevered in her union, she
would never have worn the chains of Macedon; and might have proved a
barrier to the vast projects of Rome."

Hamilton develops how the design of the Constitution of a republican

government is crucial for its success. America can avoid the failures of
previous republics by establishing the American republic on a broad and
solid foundation. The authors develop the necessity of a division of the
government into three branches, the Executive, the Legislative and the
Judiciary, and the separation of powers between these three branches. They
demonstrate that this arrangement best accomplishes the goals of republican
self-government.
To Promote the General Welfare
The Federalist develops the central concept of the republican form of
government, the responsibility of the government to promote the general
welfare, as stated in the Preamble to the Constitution. Madison wrote that,
"the real welfare of the great body of the people, is the supreme object to be
pursued; and that no form of government whatever has any other value than
as it may be fitted for the attainment of this object."
The success of a republican government depends on the development of the
nation's industry and infrastructure. Madison, in answering those critics who
argue that the country is too large to be governed by a republican form of
government, argued that the country will be bound together by the development of infrastructure:
Let it be remarked . . . that the intercourse throughout the Union
will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations
for travellers will be multiplied and meliorated; an interior
navigation on our eastern side will be opened throughout, or
nearly throughout, the whole extent of the thirteen States. The
communication between the Western and Atlantic districts, and
between different parts of each, will be rendered more and more
easy by those numerous canals with which the beneficence of
nature has intersected our country, and which art finds it soon
little difficult to connect and complete.

Library of Congress

Library of Congress

The Authors of The Federalist Essays: James Madison (l), Fourth President
of the United States, known as the "Master Builder of the Constitution."
Alexander Hamilton (r), First Treasury Secretary of the United States.

Madison further predicts that manufacturing will grow and that the government meant for the duration ought to contemplate these revolutions, and be
able to accommodate itself to them. Hamilton discusses that there is no
contradiction between agriculture and commerce, but rather the growth of
each strengthens the other and the entire country. "The often-agitated
question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted
between them, and has proved, to the satisfaction of their friends, that their
interests are intimately blended and interwoven. It has been found in
various countries that, in proportion as commerce has flourished, land has
risen in value." As all sections of the nation grow, this symbiotic
relationship will break down the tendency for political factions.
The competence of the government in economics was intimately tied to the
question of justice. Hamilton stated, "the man who best understands the
principles of political economy will "be least likely to resort to oppressive
expedients, or to sacrifice any particular class of citizens to the procurement
of revenue. It might be demonstrated that the most productive system of
finance will always be the least burdensome." Taxes should coincide with
the public interest. "Happy it is when the interest which the government has
in the preservation of its own power, coincides with a proper distribution of

Library of Congress

John Jay, First Chief Justice of the

Supreme Court.
Title page of The Federalist

the public burdens, and tends to guard the least wealthy part of the
community from oppression!"
Recent remarks by President Clinton that the speculative flows of $1.5
trillion in hot money traveling around the globe, represents a threat to
economic stability, indicate a glimmer of sanity in government circles that
are otherwise dominated by mass hysteria. Today's leaders would do well to
study Madison's arguments on the necessity for stability in government
policy to insure that producers can prosper. Madison's argument could be
applied today in attacking the disruptive effects of the floating exchange rate
currency system and promoting a return to a system of fixed exchange rates
in a "New Bretton Woods" monetary system; he stated:
In another point of view, great injury results from an unstable
government. The want of confidence in the public councils
damps every useful undertaking, the success and profit of
which may depend on a continuance of existing arrangements.
What prudent merchant will hazard his fortunes in any new
branch of commerce when he knows not but that his plans may
be rendered unlawful before they can be executed? What

farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when
he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government. In a work, no great improvement or laudable enterprise
can go forward which requires the auspices of a steady system
of national policy.
The conceptions in The Federalist on economic development and the role of
the central government in this, were fully developed by Hamilton into the
American System of Economics, when he became the first Secretary of the
Treasury under President George Washington.
Hamilton exposes how a central flaw in the feudal system was the lack of a
strong central government. Hamilton, who had warned of the danger of
America being recolonized, accurately described the situation of the world
before the founding of the nation-state: the sovereign ruled over vassals,
who in turn, ruled over other vassals. "The consequences of this situation
were a continual opposition to authority of the sovereign, and frequent wars
between the great barons or chief feudatories themselves. The power of the
head of the nation was commonly too weak, either to preserve the public
peace, or to protect the people against the oppressions of their immediate
lords. This period of European affairs is emphatically styled by historians,
the times of feudal anarchy." The defeat of feudalism, then, and the defeat
of those who are promoting a feudalist "One World Order," today, requires a
power which must necessarily be embodied in a strong executive branch of
government.
Energy in the Executive
Hamilton stated that, although some say that a vigorous Executive is
inconsistent with the genius of republican government, "Energy in the
Executive is a leading character in the definition of good government. It is
essential to the protection of the community against foreign attacks; it is not
less essential to the steady administration of the laws; to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of liberty
against the enterprises and assaults of ambition, of faction, and of anarchy."
"Thus far the ends of public happiness will be promoted by supplying the
wants of government, and all beyond this is unworthy of our care or anxiety.

How is it possible that a government half supplied and always necessitous,

can fulfill the purposes of its institution, can provide for the security,
advance the prosperity, or support the reputation of the commonwealth?
How can it ever possess either energy or stability, dignity or credit,
confidence at home or respectability abroad? How can its administration be
anything else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal
or enlarged plans of public good?"

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Socrates, as he prepares to carry out the death sentence ordered by an

emotionally-inflamed jury.

The Control of Tyranny and Factions

The division of the government into three branches, the Executive,
Legislative, and Judiciary was deemed the best form of government to
achieve the goals stated in the Preamble to the Constitution: "to promote the
general Welfare and secure the blessings of Liberty to ourselves and our
Posterity." The system of separation of powers and checks and balances was
designed to control tyranny and factions, whether that faction consisted of a

minority or a majority, and prevent that faction from imposing policies on

the nation that deviated from the general welfare. "The friend of popular
governments never finds himself so much alarmed for their character and
fate, as when he contemplates their propensity to this dangerous vice." It is
often heard that "the public good is disregarded in the conflicts of rival
parties, and that measures are too often decided, not according to the rules of
justice and the rights of the minority party, but by the superior force of an
interested and overbearing majority."
In order for the system of checks and balances to work to prevent one group
from controlling all power, it is necessary that each branch of the government be independent and not be dependent on another. Hamilton stated that,
"If the executive were dependent on the legislative this would violate the
reason for the separation of powers and good government." This is one of
the flaws in the Parliamentary form of government, such as that of Britain
today, which generally lacks a strong independent executive.
Madison warned that: "If a faction consists of less than a majority, relief is
supplied by the republican principle, which enables the majority to defeat its
sinister views by regular vote. . . . When a majority is included in a faction,
the form of popular government, on the other hand, enables it to sacrifice to
its ruling passion or interest both the public good and the rights of other
citizens." Therefore, various checks and balances such as the division of the
government into three branches, the division of the legislature into two
houses with different periods of service were designed, to insure a deliberative process which made decisions based on the general welfare, rather
than the interests of a faction.
Madison argued that republican government must protect the people from
their own temporary errors. This is consistent with the Preamble of the
Constitution, which states the commitment to our posterity. Madison used
the example of the judicial murder of Socrates to illustrate this:
What bitter anguish would not the people of Athens have often
escaped if their government had contained so provident a
safeguard against the tyranny of their own passions? Popular
liberty might then have escaped the indelible reproach of
decreeing to the same citizens the hemlock on one day and
statues on the next.

For this reason, a strong executive, and leaders who will seek to promote the
public good, and who are willing to go against temporary popular irrationality are required. Hamilton stated:
There are some who would be inclined to regard the servile
pliancy of the Executive to a prevailing current, either in the
community or in the legislature, as its best recommendation.
But such men entertain very crude notions, as well of the
purposes for which government was instituted, as of the true
means by which the public happiness may be promoted. The
republican principle demands that the deliberate sense of the
community should govern the conduct of those to whom they
intrust the management of their affairs; but it does not require
an unqualified complaisance to every sudden breeze of passion,
or to every transient impulse which the people may receive
from the arts of men, who flatter their prejudices to betray their
interests. It is a just observation, that the people commonly
intend the PUBLIC GOOD. This often applies to their very
errors. But their good sense would despise the adulator who
should pretend that they always reason right about the means of
promoting it. They know from experience that they sometimes
err; and the wonder is that they so seldom err as they do, beset,
as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the
desperate, by the artifices of men who possess their confidence
more than they deserve it, and those who seek to possess rather
than to deserve it. When occasions present themselves, in
which the interests of the people are at variance with their
inclinations, it is the duty of the persons whom they have
appointed to be the guardians of those interests, to withstand the
temporary delusion, in order to give them time and opportunity
for more cool and sedate reflection. Instances might be cited
which a conduct of this kind has saved the people from very
fatal consequences of their own mistakes, and has procured
lasting monuments of their gratitude to men who had courage
and magnanimity enough to serve them at the peril of their
displeasure.
Special attention was also paid to designing a government that would control
factions created by foreign meddling. The authors describe how that prob-

lem had existed under the weak government of the Articles of Confederation. Madison wrote of the Greek city-states, "Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted
in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy." This is a situation that is unfortunately being
repeated today with the British-led assault on the President and Presidency.
In addition, Madison and Hamilton both emphasized the importance of the
absolute prohibition of titles of nobility, as a guaranty of the republican form
of government.
Shortly before the November 1998 elections, a group of over 400 historians
released a statement warning that the present drive to impeach the President,
posed "the most serious implications for our constitutional order." The
petition stated that the Framers of the Constitution "explicitly reserved
impeachment for high crimes and misdemeanors in the exercise of executive
power. Impeachment for anything else would, according to James Madison,
leave the President to serve 'during pleasure of the Senate,' thereby mangling
the system of checks and balances that is our chief safeguard against abused
of public power."
Many Congressional supporters of the Starr operation have responded to the
growing public disgust with Kenneth Starr and themselves, by arguing that,
in proceeding with the impeachment drive, they were doing their Constitutional duty, and were, therefore, justified in ignoring public opinion. Texas
Senator Phil Gramm defended the impeachment drive in a letter to a constituent by quoting Alexander Hamilton, from Essay 65, that "the Senate
must be 'unawed and uninfluenced' in this matter."
Gramm, a former "economics professor," who has never shown anything but
complete ignorance of Alexander Hamilton's American System of political
economy, was quoting Hamilton's arguments out of context. In a discussion
of how the Senate must have the fortitude to stand up to public pressure for a
conviction in the event that they should find the accused INNOCENT,
Hamilton had vehemently warned that, should the Senate not "be endowed
with so eminent a portion of fortitude," this "would be fatal to the accused."
Americans, particularly Republicans who pride themselves in being
patriotic, would do well to reflect on those Federalist essays, in which
Hamilton discussed the functioning of the judicial system. The Founding
Fathers were determined to bring an end to the judicial tyranny to which
they had been repeatedly subjected by the British courts. Hamilton goes to

Sen. Phil Gramm, in a rare act of patriotism, announces that he is dropping

out of the GOP Presidential primary, Feb. 14, 1996.

great lengths to outline the means by which the federal judiciary must act as
a bulwark against such tyranny.
What better example of what Hamilton was warning against, than Kenneth
Starr's inquisition? The President is the target of a massive, well-financed
smear campaign launched by the British establishment through such
operatives as Ambrose Evans-Pritchard and Richard Mellon Scaife, Kenneth
Starr, who had been in cahoots with the President's enemies even before he
was appointed to the position of "Independent" Prosecutor, repeatedly,
illegally leaked information of dubious validity to members of the news
media. The media then unleashed a constant barrage with these illegally
obtained leaks, followed by demands that the President resign, without ever
being even charged, much less tried on the evidence, and convicted. The
hearings in the House Judiciary Committee then continued this legislative
tyranny.

It was to deal with exactly this kind of situation, that Hamilton had demanded that the Senate be "unawed and uninfluenced," and "be endowed with so
eminent a portion of fortitude," that the accused not become a victim of
lynch-mob justice.
Much of the motivation for these methods may have come from awareness
that the President's conduct does not come even close to the grounds for
impeachment as stated in the Constitution: "Treason, Bribery, or other high
Crimes and Misdemeanors." Alexander Hamilton stated that the jurisdiction
for impeachment "are those offences which proceed from the misconduct of
public men, or, in other words, from the abuse or violation of some public
trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the
society itself."
Most of the grouping that is behind the assault on the President reject the
strong Executive Branch, which has been central to America's remarkable
success, and want to tear it down. They fear that President Clinton will use
that power to implement an American System economic policy with Lyndon
LaRouche's Eurasian Land-Bridge and New Bretton Woods monetary
policies. However, should he fail to act, or be crippled by the Starr-led lynch
mob, this nation will be plunged into chaos beyond belief. Reflect on the
grounds for impeachment as stated in the Constitution: "Treason, Bribery, or
other high Crimes and Misdemeanors," with the first being Treason. What
more deadly Treason could there be than to tear down the Executive Branch
itself, and the Chief Executive, when his actions are urgently required to pull
this nation back from the impending disaster?
Judges as Guardians of the Constitution
Hamilton was the creator of the conception of Judicial Review, or the idea
that the Judiciary has the responsibility to ensure that laws were in conformity with the higher law of the Constitution. In the Federalist, Hamilton
explains this conception:
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 pre-

ferred; or, in other words, the Constitution ought to be

preferred to the statute, the intention of the people to the
intention of their agents. (Federalist, No. 78).
The judiciary also has the responsibility to protect the Constitution from the
temporary whims of even a majority of the people. Hamilton rejected the
ideaunfortunately popular among those who are, in fact, destroying the
Constitutionthat the judicial system should be based on the whims of the
population, or the Zeitgeist (spirit of the times). He argued that although it is
a "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."
The authors of the Constitution defined rigorous conditions for amending it,
to insure that changes are based on a deliberative process rather than a
temporary whim.
The founders of America who had repeatedly witnessed judicial tyranny in
the British courts, were determined that the American judicial system serve
as a bulwark against it. Hamilton argued that the independence of judges is
necessary to mitigate the severity of unjust laws. "Considerate men, of
every description, ought to prize whatever will tend to beget or fortify that
temper in the courts; as no man can be sure that he may not be tomorrow the
victim of a spirit of injustice, by which he may be a gainer today." This role
for the Judiciary has been severely undermined in recent years, and the
majority of our fellow citizens have accepted it, because they have been
blinded by their own rage and pessimism. However, provided we act now, it
is not too late to reverse this process, and reestablish Constitutional law in
the United States.