Hamiltons Views on Judicial Power - Essay Example

The concept is enshrined in the constitution of the United States and in the various states that expressly forbids each branch of government to usurp the power of any other branch. Hamilton gives the anxiety of their time that because the legislature holds the purse strings and the executive the sword of society, the impartiality of the courts can be undermined, that it is the weakest branch of government with neither will nor force to enforce its judgement. Considering the fact that the the constitution provides for certain limitations which the legislature is proscribed from enacting such as bill of attainder, ex-post facto law, the question arosed on how the courts may declare such unconstitutional law null and void with impartiality and justice.

Hamilton rationalized that the two non-judicial branches must not take offense for the declaration of their acts as unconstitutional as one of interference because the court is only declaring the letter of the constitution and did not do so as one superior to them, that the act does not constitute a substitution of their will or pleasure. The constitution, in order to assure the independence of judges, declares their tenure of service as permanent based pm good behavior. The periodic appointment of judges would likely indebt them to either executive or legislative branch responsible for their appointment.

The independence of the judiciary is essential to the enforcement of the constitution because it is an aspect, like that of separation of powers, of the concept of "checks and balance" and ultimately of governance. Judicial independence is not only a normative ideal but an institutional virtue as well. And in the said virtue and ideal lies the capacity of the courts to protect individual rights, to police the structural limits of governmental power and to decide individual disputes based on the applicable law and the factual records of each case without regard to intimidation or other impermissible influences, if any.

Judge Learned Hand (1958) urged caution in the exercise of judicial power. He considered the source and nature of the power of judicial constitutional review as necessary to prevent the failure of the government created by the constitution. He also proposed judicial restraint, saying that the power should be "confined to the need that evoked it" meaning, as a check on the usurpation of power by the other branches. For him the judiciary plays the necessary role in maintaining a government "between absolutism and the kind of democracy that so often prevailed in Greek cities during the sixth to fourth centuries before our era.

" Like Hamilton and Montesquieu, Hand believes that no single branch should have absolute power, especially not the judiciary.Modern thinkers (Shane, 1998) proffer that the paradigm of judicial restraint may often be misleading, unhelpful and even counter-productive. They propose another paradigm, that of "inter-branch accountability." They admit that "every branch has the power to make life more difficult for