The Least Dangerous Branch? · Episode 2 of 13 · 42 min
Judicial Review Isn't in the Constitution. So Where Did It Come From?
The Constitution fixes no number of Justices and never explicitly grants the Court judicial review. The episode sets Hamilton's Federalist No. 78, with its promise of a 'least dangerous branch,' against the Anti-Federalist 'Brutus,' who warned that life-tenured judges would expand their own power beyond any check. One was a ratification argument; the other reads like a prophecy.
Who's who
- Alexander Hamilton+2 more episodesWrote Federalist No. 78 defending a weak, neutral judiciary
- BrutusPseudonymous Anti-Federalist who warned of an unaccountable judiciary
- Robert YatesNew York judge, traditional suspect behind the Brutus essays
- Melancton SmithAlternative candidate for authorship of Brutus
- James Madison+6 more episodesCo-author of The Federalist and separation-of-powers framer
Timeline
- Summer 1787The Convention drafts Article III, setting no number of Justices.
- October 1787 - April 1788The Brutus essays run in the New York press.
- May 28, 1788Federalist No. 78 appears in the collected edition.
- 1789The Judiciary Act sets six Justices and creates lower federal courts.
- 1803Marbury v. Madison asserts judicial review.
Still debated
Who wrote the Brutus essays is not settled; Robert Yates is the likely but uncertain candidate. Historians also dispute how sweeping the Framers meant judicial review to be, and whether Brutus was vindicated.
← PreviousThe Supreme Court on Trial: Is It Really a Neutral Umpire?Next →Marbury v. Madison: How the Court Gave Itself Its Greatest Power
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