Judicial ReEngineering

REGENT UNIVERSITY LAW REVIEW
[Vol. 14:141
agreed with this to a great extent, but not in its entirety. They believed
that certain principles of the government needed firmer grounding than
a simple reliance on the passions of the people. This belief sprang from
the principle discussed in Section II, Part A, that people were fallible and
often succumbed to their darker passions. The Founders maintained that
"it is the reason of the public alone that ought to controul and regulate
the government. The passions ought to be controuled and regulated by
the government." 124
This was one reason for a written constitution that was difficult to
amend: people's darker passions must be kept from changing the
Constitution each time something excited them. Our written
Constitution intentionally placed certain principles beyond the ordinary
reach of the people. After all, the point of a written constitution is
diminished, if not obliterated, if it is constantly changed. 125 The
Constitution was not intended to be entirely democratic. 126 Controlling
the public's passions was also a reason behind creating an independent
judicial branch with appointments that last during good behavior and
untouchable salaries for the judges. The Founders wanted a branch that
would handle constitutional questions in a dispassionate and reasoned
way, one that would not be afraid of challenging the will of the people
when extraordinary circumstances called for it. The Articles of
Confederation did not provide for a judicial branch, so no venue existed
to settle federal questions. No constitutional challenge to legislation
could be made at the federal level. The Founders attempted to remedy
these things through the creation of a body with an unprecedented
power: judicial review.
There is doubt, but not an immense amount of it, that the Founders
intended judicial review to exist. Alexander Hamilton observes in
Federalist 78, "[ln a government in which [the different departmentsl
are separated from each other, the judiciary, from the nature of its
functions 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."'1 27 People may chuckle when they read this, assuming that
Hamilton must not have taken into account, or conceived of, the power of
judicial review when he wrote this now famous text. The facts are the
opposite. In the same paper, Hamilton expressed the first rationale for
124 THE FEDERALIST No. 49 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 146.
125 Just look at France, with its experience of the Revolution of 1789 and the ensuing
Terror of 1793-1794.
126 J. Clifford Wallace, The Jurisprudence of Judicial Restraint: A Return to the
Moorings, 50 GEO. WASH. L. REV. 1, 2 (1981).
127 THE FEDERALIST, No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra
note 26, at 468.
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