No, rejoined Hamilton, thus driven to the wall, judges never will so
abuse their trust. The duty of the judge requires him to suppress his
_will_, and exercise his _judgment_ only. The Constitution will be
before him, and he will have only to say whether authority to legislate
on a given subject is granted in that instrument. If it be, the
character of the legislation must remain a matter of legislative
discretion. Besides, you must repose confidence somewhere, and judges,
on the whole, are more trustworthy than legislators. How can you say
that, retorted the opposition, when you, better than most men, know the
line of despotic legal precedents from the Ship Money down to the Writs
of Assistance?
Looking back upon this initial controversy touching judicial functions
under the Constitution, we can hardly suppose that Hamilton did not
perceive that, in substance, Jefferson was right, and that a bench
purposely constructed to pass upon political questions must be
politically partisan. He knew very well that, if the Federalists
prevailed in the elections, a Federalist President would only appoint
magistrates who could be relied on to favor consolidation.
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