In that sales pitch, Hamilton, on May 28, 1788, wrote in a newspaper article we today call the Federalist no. 78, that the courts, including the Supreme Court, were the weakest of the three branches created by the Constitution. After all, at that time it wasn't envisioned that they would ever have the power to strike down laws passed by Congress.
"[T]he judiciary is beyond comparison the weakest of the three departments of power," he wrote, adding in the same sentence that "it can never attack with success either of the other two [branches]."
He even footnoted that sentence with a quote from the famous French judge Montesquieu, who had first clearly articulated the idea of a separation of powers between governmental branches as a check and balance. Hamilton's footnote read:
"The celebrated Montesquieu, speaking of them, says: 'Of the three powers above mentioned, the judiciary is next to nothing.'"
He explained why the Court's judges had lifetime appointments and the judiciary had its own section of the Constitution, writing in the Federalist, no. 78:
"[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches."
The lifetime appointments and Montesquieu's "separation of powers" would insulate the Court from being "overpowered, awed, or influenced" by the president or Congress.
But some Americans (and many of the newspapers of the day) weren't convinced; the idea of lifetime appointments and being a branch of government independent from the other two sounded too much like Supreme Court justices could seize enough power to resemble the European monarchies that the colonists had just fought a revolutionary war against.
"What would prevent the Supreme Court from rising up and taking over the country?" they asked. "You're concentrating too much power in one branch!" others essentially said.
So, a month later, in June 1788, Hamilton published what is now known as the Federalist, no. 81, directly answering their objections, again arguing that the Supreme Court couldn't make laws and couldn't strike down laws.
First, he cited (rather accurately) the objections to the Supreme Court he was pushing, noting that opponents of the Constitution were concerned that Supreme Court justices -- dangerously! -- might interpret the Constitution in a way of their own personal or partisan choosing.
"The arguments," Hamilton wrote, "or rather suggestions, upon which this charge is founded, are to this effect:
"The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous." (Emphasis Hamilton's.)
Having set up the objections/concerns, he then answered those doubters in the next paragraph.
"In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State." (Emphasis his.)
He also pointed out, in the next paragraph, that even if the Court were to rule on the meaning of a poorly written law (or even corruptly distort a law's meaning) in deciding a case, the legislature could simply write a new law clarifying what they meant and the new law would apply for the future:
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