prepare and submit a term paper on Comparison of Federalist Paper 78 and Brutus XI.
You will prepare and submit a term paper on Comparison of Federalist Paper 78 and Brutus XI. Your paper should be a minimum of 1500 words in length. At first, there were arguments with one side made up of the Anti-Federalists and others by Federalists during the formation. The process witnessed a lot of debate between the two opposing sides. Most of the discussion revolved around the power and functions which are held by the judiciary. One thing both sides had in common was there was a new of a new judicial court system after the failure of the Articles of Federation over the past. The most heated debate pitched the Federalists and Anti-Federalists was the powers handed over to the judiciary system in declaring laws as per the Constitution. The proposed Constitution handed the sovereign mandate to the court to declare laws that could not be reviewed by a branch of the government. The law also suggested the permanent appointment of the judges. The proposed Constitution elicited different reactions by Brutus with regards to the Supreme Courts decision, which led to the formation of the Brutus XI. A counterargument from the suggestion was from Alexander Hamilton. Hamilton suggested that the court will not be dangerous since it will be acting out of its accord with the judgments. There were Constitutional ramifications despite the various concerns passed by the Anti-Federalists. However, the Brutus XI presents realities that we face to date in society. The facts from Brutus show the extent of power by the system in pressuring the government in a manner to give in to their commands since they have sovereign power without any regulation.
Hamilton clarifies with regards to the branch of the judiciary going by the proposed Constitution. There are three significant arguments where he bases his analysis of the judiciary system. The first argument is with the independence of the federal courts from other organs. The second argument is with the permanent appointment of the judges. Lastly, he covers the relationship that exists between the judicial and other branches. The analysis proves that he agrees with the mandate of the judicial in turning down laws passed by congress. The ground for turning down the laws is when the judicial feels like the laws are against the Constitutional tenants. The argument by Hamilton starts with the proposed lifetime of the judges in judicial. Basing on the Constitution, the government appoints the judges who take on the mandate for the remainder of their life, given that they act accordingly with good behavior. However, many critics argue against the permanence move. However, he counteracts by suggesting the permanence in the office, bears fruit for the judiciary branch. A good reason for the permanence move is disallowing any political pressures from interfering with the judges.
Secondly, there is the disallowing of influence from another branch of government from imposing on judicial decisions. Hamilton points out the few people will have the competency and integrity in terms of passing laws. Therefore, there was no need to replace the judges if they acted accordingly throughout their tenure. However, he affirms the stance of Anti-Federalists who view the judiciary as a stumbling block. He further refers to the judges as the weakest branch in the government with the least power that falls beneath the powers and political rights of the Constitution. He points out the lack of support of the federal courts in operating laws for the government. Federal courts lack support from the commander in chief of the armed forces or the support from the legislature. The latter is in charge of approving all tax and expenditures from the government. Hamilton believes that the judge lacks the power to enforce will on its mandate and only passes judgments. The sole function of the judicial is for making judgments through the courts, leaving the other branches of the government to make decisions. There is also the case where there might be unfair judgments. However, Hamilton affirms that the weak structure of the judiciary fails to endanger the liberty of people. Another argument point comes from the limitations of Constitutional power. The constraints are expressed through limits with the practice, which shows its usefulness through the courts. Therefore, the protection of the Constitution lies with the power of the courts in declaring laws against the violation of the provisions of the Constitution. Hamilton also argues that the Constitution should be treated as a fundamental law.
The Constitution, according to Hamilton, should represent the will of the people. Hence, the legislature cannot assume the will of the people when passing laws. This calls for the creation of the judicial branch that looks out for the will of the people and not those of the legislature. All in all, Hamilton points out that there is no superiority when it comes to the branch of the government. All branches have equal power but fall under the will of the people and not those of legislators. For consideration with regards to the protection of judges, Hamilton considers a situation where the public and legislators both consider an unconstitutional law. Due to judicial independence from other branches, it has to abide by the will of the general population.
The Brutus XI also raises various issues relating to the power of the judicial branch and the concerns of the Anti-Federalists within the branches of the government. Brutus shows that there is little concern over the matter. There are three major concerns which the judicial branch hopes in achieving. The vagueness of the powers of judges needs to be revisited. Brutus also clarifies the lack of powers by other branches to counteract against the judiciary. The last argument is the mixture of politics and the judicial. A significant argument in Brutus is the anonymity and ambiguous words used in defining the judicial role and power. Going by the provisions of the Constitution, the judicial will have excess power that the legislative branch since it oversees the interpretation of the Constitution. Brutus argued that the judiciary could abuse the purse of the sword due to the powers by the courts to interpret the Constitution, which is contained in the Federalist 78. Brutus feels that the judge could harness the power in interpreting the Constitution in a manner that undermines the legislature and government.
Furthermore, the judiciary branch could interpret the Constitution in a manner that enhances their will over the will of people and the government. There is also the case where the courts act in favor of the government. It gives the courts the power to shape the government infinitely. Brutus also relives the fate of the lifelong occupancy of the judge’s role in courts. Brutus believes that the life occupancy of the roles reduces the country into an aristocratic state. He raises the question of the dominance of the judiciary over other branches. Article III of the proposed Constitution also raises questions regarding the use of equity. The judicial review comes to action with this section while looking at the ‘spirit of the law.’ He believes that this will cause supremacy in the power of one branch over the other branches. He sees a future paradigm shift in the court’s authority with how the system will take over control for the powers. The balance also concerns him with how the various forms of government will agree with each other over decisions made.
The comparison of Federalist Paper 78 and Brutus XI shows close similarities and differences concerning both Federalists and Anti-Federalists. The founding states raised severe debates over the power of the judicial branch in passing laws without interference from other branches. It also raised debate over the powers of the Judicial in declaring laws as unconstitutional. He has issues regarding judicial supremacy, the long-life occupancy of the judge’s seat, and the judicial review. The judges in courts occupy the office for life, and any other branch of the government cannot check their decisions. However, Hamilton argues that there is benign power of the courts with the enforcement of judgments and not will make it a less superior branch. Brutus counteracts Hamilton’s argument by giving a case where the court’s term law as unconstitutional through interpretation to their liking. Hamilton responds by stating that the power of the courts to interpret the Constitution does not grant them the sovereign power to alter it to their own will. The founding stages by the framers had to decide whether to grant the power of judicial review. This was in terms of benefits to the citizens.  .Both Brutus and Hamilton reach common round over the formation of an independent judiciary. However, they both disagree on the extent and independence that exist between the state and the federal courts. He has a belief power granted to the courts will overtake the powers of the state. Hamilton, on the other hand, sees courts are protecting the will power of people from legislators. The debate that concerns power-sharing among the branches continues to unravel.
Judiciary supremacy branch is something that the Supreme Court wishes to possess. Time has seen the reaffirmation of concerns held by Anti-Federalists over the extent of powers by the judiciary and its supremacy. The passive nature of the other states and the American people gives the judicial a superior role in the current society. Despite the powers held by the federal courts, it continues to judge in case the judicial still hold the least powers in the state.
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