The Least of These: A Tale of Judicial Power

Federalist PapersOne lonely night while pondering upon our great American democracy, I decided, at the behest of my GPA, to read a portion of the Federalist and Antifederalist Papers.  Rather than defaulting the authors for their rather dry, dispassionate arguments – carried out line by line, point by point – my anthropological senses were instead tickled.  

Questions begin to fill my mind, most of them shallow and useless (How did these Americans brush their teeth? Did they brush their teeth? I really hope they had teeth.), but at least one of them made it to a deeper level of cognition.  The idea that the systems that are today, simply didn’t exist 230 years ago is conceptually exciting.  Processes of governmental success had to be imagined and researched and debated on.  These Federalists and Antifederalists had to create something that had never existed before and, as such, their possibilities were limitless – a fascinating time period for educated, white, property-owning, Protestant Americans.

And, for the most part, the arguments that I ran across were logical and, at times, prophetic – hinting at a future of judicial review, the very backbone of today’s Court.  However, one claim, made by Alexander Hamilton in #78, stands out against the rest, striking me as disingenuous and even a bit manipulative.   He held the position that the judiciary “… will always be the least dangerous to the political rights of the constitution”  as it lacks both “the sword or the purse.”

This revelation leaves me almost speechless.  I mean, our modern day court system is arguably the most powerful branch of U.S. government, and is definitely the most powerful judicial system when compared to the rest of the world. I am further baffled by Hamilton’s claim, “… that 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…” This is an alluring utilitarian argument, that the lives of the many are more valuable than the one; however, what if you are that one?  The least powerful branch has ordered the deaths of many American citizens, the power to take life within its jurisdiction.  Individually based oppression or not, this is a tremendous position to hold, and astutely captured Amy Elkins in her gallery, “Parting Words”, in which she photographs death row prisoners along with their last words.

Elliot Johnson: Executed June 24, 1987; Age 38

Ignacio Cuevas: Executed May 23, 1991; Age 59

Karla Faye Tucker: Executed Feb. 3, 1998; Age 38

Leonel Herrera: Executed May, 12 1993; Age 45

Whether or not  capital punishment should exist, there is no denying the power of the bench. And  the thing of it is, Hamilton, as well as the other Federalists, foresaw this power, implicitly hinting at its future.  Nevertheless, he knew that his constitutional rivals would have a none of it, repulsed as they were against centralized power.  I am therefore thoroughly convinced that Hamilton purposefully misconstrued his argument in order to manipulate the Antifeds  into signing (weird, right? A manipulative politician?).  As history tells it, the Federalists won their war, and the least powerful branch has proven itself as an effective policy maker – for better or for worse.

About Wunderkynd

“What is to give light must endure burning.” – Vikto E. Frankl

This entry was posted in Alexander Hamilton, Antifederalists, Capital Punishment, Democracy, Federalists, Judicial Review. Bookmark the permalink.

6 Responses to The Least of These: A Tale of Judicial Power

  1. temanson says:

    These pictures are incredible,,, the same for your helping me with blogging.

  2. darrian01 says:

    The pictures really help you convey the message of your blog. Capital punishment is a very touchy subject and sometimes I question the sentencing of many individuals who sit on death row or who have been killed on death row. Though the judicial branch has sentenced many to death, I question whether or not it is the right thing to do, and do individuals no matter what their station have the right to sit down and decide whether or not a person has the right to live or die. Though you say that the Judicial branch is considered the “least” powerful branch, their power out weighs a lot when it comes to capital punishment.

  3. jenny9213 says:

    I simply found the images effective and powerful. They helped convey the power that the judicial branch has through capital punishment. The power to take a life in no way conveys a branch that has just the slightest of power. I, too, have wondered whether Hamilton tried to manipulate words in order to state the judicial branch as the least powerful to get the result he wanted. I truly enjoyed your blog.

  4. haleyschryver says:

    Wow, great blog post! Those pictures are incredibly powerful. They have helped put a few faces to the vast power that is the Supreme Court. While it is still true that the Supreme Court does not have the power of “the sword or the purse,” all of the lives that have been forever changed (or ended, in the case of the photographs) show the true power of the Supreme Court. It is certainly not the weakest branch. It has the ability to substantially alter the the country with one ruling.

  5. This is a very interesting blog post. I was one of the countless people who thought that the US Supreme Court had little to no power (Kellogg Co. v. National Biscuit Co.; who owns the rights of the corn flake, yes this was a real case). But now after reading this blog post it is interesting to see the faces that have been effected by the Supreme Court I agree with every one else with the statement that the US Supreme Court is not the weakest brach of the federal government. Plus the pictures were really interesting to see.

  6. It’s been a while since I’ve read the Federalist Papers. Did Hamilton anticipate judicial review, in your reading of his work? I’d imaging that as a federalist who desired a strong central government, he wouldn’t want a judiciary full of Jeffersonians that could overturn legislation that would support his vision of an industrialized America.

    I also don’t think it’s fair to condemn Hamilton for his failure to foresee the state of our criminal justice system today. “Three strikes laws,” the War on Drugs, the horrendous racism embedded within capital punishment–you can’t blame Hamilton for not anticipating these.

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