Essay Example on Federalist No. 78: Ensuring Fair & Upright Law Administration

Introduction

In the federalist paper No. 78, Hamilton considers the way government judges are selected and contends that they ought to be named in a similar way as other administrative officials. He likewise questions the length of their residency in office and recommends that they should keep holding their workplaces as long as they ensure great conduct. He asserts that there is no better method for making sure about a consistent, upstanding and fair organization of the law. Hamilton recommends that the Judiciary should remain really unmistakable from both the Legislative and Executive arms of government and go about keeping an eye on both in the event of infringement of the constitutions, as the courts claim all authority to proclaim an administrative act invalid and void. Since this considers the Judiciary unrivalled in eyes of others, Hamilton contends that the constitution is basic law and courts have the obligation to determine its significance as well as that of legislative acts and executive activities.

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In the federalist paper No. 79, Hamilton argues that the independence of judges is assured by making a fixed provision for their support. He observes that a power over a man's subsistence amounts to a power over his will. In the subsequent paper, he states that federal courts have the authority to overrule state laws that go against the constitution and enforce uniformity in the interpretation of federal laws. The federal courts should also assure domestic order, resolve conflicts between states and solve cases involving citizens of other nations.

In the federalist paper No. 81, Hamilton in as much as he argues that state courts remain sovereign in the area of their jurisdiction, they are not competent in handling national laws and interpretations of the constitution thus instituting inferior federal courts. He denotes that state courts are likely to be regionally oriented or exhibit bias in judging national laws.

Introduction to American Constitutionalism

In chapter one of the book "Introduction to American Constitutionalism" the author attempts to tackle the five fundamental questions that raise disputes over what constitutionalism is all about. The questions include what a constitution is, what purposes it serves, how it should be interpreted, how disputes should be resolved and how it can be changed. He judges that most Americans have easy answers to all questions except how to properly interpret the constitution.

The author argues that Americans have two notions of interpretation, one; being that "normative" theories put a stamp on what the constitution means and two; that these theories tend to explain the decision-making process of the constitution. These debates put a spotlight on how constitutionalism affects politics. While on one hand legal and policy disputes are different, the other shows no concrete distinction between the two. The author argues that these disputes are best understood as practices that affect policy preferences on legally binding decisions and are not a separation of laws and policies.

The chapter then outlines six theoretical points on how the constitution of the United States of America is interpreted. They include: - Originalism, Textualism, Doctrine, Structuralism, Prudentialism, Aspirationalism. It further outlines that constitutional practices are not necessarily influenced by these theories but rather by developed models of thinking by justices and other authorities. These models include the strategic and attitudinal approach that deal more with policy rather than law, the legal model that focuses on the law aspect rather than policy and the historical institutionalists model that encompasses all the other three models.

Reflection Question: The Most and Least Convincing Interpretation Theory

It is quite clear that numerous words and phrases such as "due process," "cruel and unusual" "probable cause" in the constitution of the United States of America are not obvious in what they mean. Attempts to use them results in a wide range of ambiguity thus leading to interpretive possibilities. Such is the case while incorporating Originalism as a theory in interpreting the constitution. During constitutional disputes, Originalism barely determines a unique outcome. Originalists disagree on how to interpret clauses such as the declaration on free speech. Some believe that the clause should be used only to protect those that were protected in 1791 while others believe that the clause should be stated as a general principle. These are the most obvious reasons that make me believe that the Originalism theory is the least convincing theory of constitutional interpretation.

The Aspirationalism theory, on the other hand, is the most convincing. I agree with Justice William Brennan's view that the constitution is a wonderful discourse on the poise of man and a strong responsibility by the individuals to the ideal of libertarian nobility secured through law. I am of the view that the constitution should focus on the integrity and dignity of its citizens. Therefore the interpretation of the constitution should focus on what is most important for the people. The most common example of Aspirationalism is the case of Lawrence v. Texas (2003) which led to the invalidation of sodomy laws in numerous other states and the re-affirmation of the right to privacy (Richards, 2009).

References

Richards, D. A. J. (2009). The sodomy cases: Bowers v. Hardwick and Lawrence v. Texas.