October 2nd: Federalist Paper #78

Discussion Post #5–Due Friday, 10/03, 11:07 pm

Plan for the Day

Midterm Exam–Tuesday, 10/07
Fall Break–10/09-10/10
Jump back to Federalist Paper #51 (9/30’s class)
Federalist Paper #78
Logical Fallacies (specific ones for our Federalist Paper discussions)
- ad hominem
- false authority
- false dilemma (either-or fallacy)
- naturalistic fallacy
- post hoc ergo propter hoc
  - Literally, “after this, therefore, because of this.”
Democracy/Liberty/Freedom/ETC. quotation:
- “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”
  —James Madison. Federalist Paper #47. 1 Feb 2025, para. 2.

Potential cold openning: Juice Newton “Angel Of The Morning”

Hamilton, Federalist #78

This essay’s title is “The Judiciary Department,” so, obviously, it’s going to discuss the courts. How about some questions at the top:

How are judges important to American Democracy?
- Consider the fact that judges are elite, specialized professionals.
- We elect some types of judges in North Carolina–including the NC Supreme Court.
- Do you think we should elect all or most judges? Term limits?
- Did you know that there’s a Supreme Court of the Russian Federation?
This might seem too obvious a question, but why are so many politicians lawyers?
- Lawyers are “a mere 0.4% of the voting-age population”;
- “[they] accounted for 39% of the seats in the House and 56% of seats in the Senate in the 115th Congress,” which met 2017-2019.
- “Relative to the average citizen, millionaires are approximately 10 times more likely to be elected to Congress. Lawyers, by comparison, are nearly 100 times more likely to be elected to Congress.”
- “By comparison, lawyer-legislators account for just 13% of the UK Parliament. The percentages are similar for other nations that inherited the English Commonwealth system of law. Canada, New Zealand, and Australia are at 15%, 14%, and 13%, respectively. The percentages for France, the Netherlands, Sweden, Denmark, and Japan are much lower, ranging from 2% to 6%.”
  –Bonica, Adam. “Why Are There So Many Lawyers in Congress? Legislative Studies Quarterly, vol. 45, no. 2, May 2020, pp. 253-290. https://doi.org/10.1111/lsq.12265
  - Compare to para. 22 of Federalist #78 {way down at the bottom of this page}

Alexis de Tocqueville (remember him), had this observation from his Democracy in America:

In America there are no nobles or men of letters, and the people is apt to mistrust the wealthy; lawyers consequently form the highest political class, and the most cultivated circle of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar.
–de Tocqueville, Alexis. “Causes Mitigating Tyranny In The United States,” Book I, Chapter XVI, Democracy in America. 1835, para. 27. {online version}

Specific quotations from Federalist #78:

para. 6: “…all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State.”
- “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.”
- “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”
para. 7: “the judiciary…will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
- “The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse…It may truly be said to have neither FORCE nor WILL, but merely judgment…”
- But if you’re on the wrong end of a judge’s ruling…it could be pretty dangerous.
para. 8: “…though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter…”
- “…liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments…”
para. 9: “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution…”
para. 10: “It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.”
- Yikes! That’s some confusing prose.
- Translation: A branch that can void the rulings of another is superior.
para. 11: “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
- The prose above has a philosopher’s style. It uses logic to show the chain of reasoning.
para. 12: “It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents.”
- “A constitution is, in fact, and must be regarded by the judges, as a fundamental law.”
- “…the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.“
para. 13: “[The judges] ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
para. 14: “…two statutes existing at one time, clashing in whole or in part with each other…it is the province of the courts to liquidate and fix their meaning and operation.”
- PRECEDENT
  - “The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first.”
  - “It is a rule…adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law.”
  - “…between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.”
No Activist Judges
- para. 16: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
para. 17: “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments…the permanent tenure of judicial offices…”
para. 18: “….fundamental principle of republican government…the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness…”
- “the established form, it is binding upon themselves collectively, as well as individually…”
- And what kind of happiness does he mean?
- What other “legal agreements” can be abolished, thankfully, when inconsistent with one’s happiness (in all senses of that definition)?
para. 19: The judiciary should moderate the “ill humors in the society” and avoid “the injury of the private rights of particular classes of citizens, by unjust and partial laws.”
- humor in this case means “characteristic or habitual disposition or bent : temperament”
- “…it operates as a check upon the legislative body in passing them…”
- “The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.”
- “Considerate men” know their positions of power might change in the future.
para. 20: Judges need permanent tenure because you don’t want them beholden to a different branch.
- “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.”
- “If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it…”
para. 21: “…a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents…”
- “…those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them….few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.”
- So I guess we need a Few Good Men…
- “…a temporary duration in office, which would naturally discourage such [of the fittest] characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.“
para. 22: “The experience of Great Britain affords an illustrious comment on the excellence of the institution.”
- Compare this to the information about the percentage of lawyers in politics. {way up above}

Judges are supposed to be held in high esteem and have the highest ethical standards, which is interesting considering where they come from…

Practice Questions

According to Jeffrey Rosen, the Founders believed the pursuit of happiness meant ________________________.
a) being good rather than feeling good
b) putting one’s individual goals before the general welfare of society’s
c) seeking pleasurable pursuits
d) all of the above
e) none of the above
True or False. According to Thomas Jefferson in a letter to James Madison, a bill of rights is what the people are entitled to from every government on earth.

Next Week

We’re not meeting as a class next week. On Tuesday, 10/07, you’ll do your Midterm Exam on Canvas, and our Fall Break is Thursday and Friday: 10/9-10/10. I’ll see your smiling, refreshed faces Tuesday, 10/14. Make sure to have read Harriet Beecher Stowe’s “In Which it Appears that a Senator is but a Man” on Canvas.