ANTONIO REPOSO

The Federalist,   Judicial Review e Stato federale 

N. 1/1987

Summary — The most common approach to The Federalist is the one that uses the political scientists’ instruments, but Professor Reposo examines those essays and in particular The Federalist. No 78 - where Hamilton deals with judicial review - from the juridical point of view.

Hamilton’s main idea - according to Reposo - is that the Constitution stemming, as it does, from popular sovereignty will "resist" all challenges, all attempts made by representative bodies to modify it on "particular conjunctures".

Hamilton does not refer to Article V of the Constitution - the one dealing with the amending power - but his attention is drawn to judicial review as offering a means for securing the conformity of State laws with "the Supreme Law of the Land" comprising "the Constitution and the laws of Congress made in pursuance thereof and the treaties made under the authority of the United States", of which the State judiciaries are made the first line of defense with, presumably, a final appeal to the Supreme Court.

Hamilton's main preoccupation was - according to Professor Reposo - to fight against any violation of the Constitution that might derive from occasional "ill humours poisoning" the representative bodies of the country and he thought that "the independence of the judges" would be "equally requisite to guard the Constitution and the rights of individuals" from the above - mentioned "ill humours". Hamilton did not realize that in that way, he put the judges in a position which was superior to the Congress itself because they could check its acts. This has given rise, in the course of the years, to the so-called "government of the judges", which Hamilton did not foresee.