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Judgement, Force, and Will - James Wilson & Alexander Hamilton on Judical Review and Judical Supremacy
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by two different authorities, one inferiour and the other superiour; which must be obeyed? When the courts of justice obey the superiour authority, it cannot be said with propriety that they control the inferiour one; they only declare, as it is their duty to declare, that this inferiour one is controlled by the other, which is superiour.
38
While not explicitly expressing the doctrine of the separation of powers, Wilson, in his
treatment of Blackstone’s position, simultaneously defends the case for judicial review while
continuing implicitly to preserve the important separation of legislative and judicial power.
Wilson continues,
They do not repeal the act of parliament: they pronounce it void, because contrary to an overruling law. From that overruling law, they receive the authority to pronounce such a sentence. In this derivative view, their sentence is of obligation paramount to the act of the inferiour legislative power.
39
Two things are important here. The authority to adjudicate in this manner comes, not from the
Constitution, but rather from first principles of government entailed by the natural law. Secondly,
the activity of voiding legislation in this manner is to be distinguished from the activity of
legislation itself. When a judge, qua judge, adjudicates the validity of a statute by the principles
of the natural law, this activity is no different, in kind, from what he does when he adjudicates a
statute by the principles of the Constitution. They are the same kind of activity, the application of
law to particularly circumstances. Having elucidated the theoretical and practical issues in play
for Wilson, let us begin our analysis of Hamilton’s approach to the problem.
Judicial Review in The Federalist.
A good place to approach Hamilton is with perhaps this well-known section from his
treatment of the judiciary:
The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be 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.
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38
Ibid., Wilson, Lectures on Law.
39
Ibid.
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Alexander Hamilton, James Madison, and Alexander Hamilton, Federalist No. 78, in The Federalist
Papers, ed. Clinton Rossiter (New York: New American Library, 1961), 464
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| | Authors: Geisler, William. |
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by two different authorities, one inferiour and the other superiour; which must be obeyed? When
the courts of justice obey the superiour authority, it cannot be said with propriety that they control
the inferiour one; they only declare, as it is their duty to declare, that this inferiour one is
controlled by the other, which is superiour.
While not explicitly expressing the doctrine of the separation of powers, Wilson, in his
treatment of Blackstone’s position, simultaneously defends the case for judicial review while
continuing implicitly to preserve the important separation of legislative and judicial power.
Wilson continues,
They do not repeal the act of parliament: they pronounce it void, because contrary to an overruling
law. From that overruling law, they receive the authority to pronounce such a sentence. In this
derivative view, their sentence is of obligation paramount to the act of the inferiour legislative
power.
Two things are important here. The authority to adjudicate in this manner comes, not from the
Constitution, but rather from first principles of government entailed by the natural law. Secondly,
the activity of voiding legislation in this manner is to be distinguished from the activity of
legislation itself. When a judge, qua judge, adjudicates the validity of a statute by the principles
of the natural law, this activity is no different, in kind, from what he does when he adjudicates a
statute by the principles of the Constitution. They are the same kind of activity, the application of
law to particularly circumstances. Having elucidated the theoretical and practical issues in play
for Wilson, let us begin our analysis of Hamilton’s approach to the problem.
Judicial Review in The Federalist.
A good place to approach Hamilton is with perhaps this well-known section from his
treatment of the judiciary:
The judiciary…has no influence over either the sword or the purse; no direction either of the
strength or of the wealth of the society; and can take no active resolution whatever. It may truly be
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.
38
Ibid., Wilson, Lectures on Law.
39
Ibid.
40
Alexander Hamilton, James Madison, and Alexander Hamilton, Federalist No. 78, in The Federalist
Papers, ed. Clinton Rossiter (New York: New American Library, 1961), 464
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