In Federalist No. 78, Alexander Hamilton argued that the judiciary was the least dangerous branch of government. Many people would argue that Hamilton was incorrect and that today’s courts wield an enormous amount of power. Why did Hamilton feel as he did, and what led to the courts’ increase in power? What have been the implications of this increase in power? Do you think Hamilton would have a problem with the role the courts play today? Why or why not?

Question

What will be an ideal response?

Answer 1

The first two questions are straightforward. Hamilton believed the courts were the least dangerous branch because they had the power of neither the purse nor the sword. The courts’ power increased with John Marshall’s establishment of judicial review. The remaining questions are more complex. The answer to the implications question could focus on the controversy over the courts as a lawmaking body or the political battles regarding judicial nominees, for example. Regarding whether Hamilton would have a problem with the role the courts play today, the answer should go back to Hamilton’s discussion of judicial review in Federalist No. 78. There is not a right or wrong answer here, but students should make a persuasive argument based on Hamilton’s writing in Federalist No. 78.