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What did Alexander Hamilton mean when he called the courts "the least dangerous branch"? In light of the judicial review powers assumed by the courts over time, is his description still valid? Why or why not?

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Hamilton had a point when he said that the judiciary branch was the least dangerous branch. The branch could not make laws, it did not have taxation power, and it could not go to war. It's only job was to judge whether or not a law was constitutional. The executive...

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Hamilton had a point when he said that the judiciary branch was the least dangerous branch. The branch could not make laws, it did not have taxation power, and it could not go to war. It's only job was to judge whether or not a law was constitutional. The executive branch's power has grown considerably in that it has sent troops all over the world without a congressional declaration of war. Congress has used the power of the purse in order to pass tariff bills and to provide funding for pet projects.

The Supreme Court has been dangerous in its own right, however. In Dred Scot v. Sandford, the court ruled that an African American could not sue because he was not a citizen. The ruling on the case also implicitly stated that one could take one's slave throughout the country. This was one of the landmark cases that led to the Civil War in 1861. By nature, the courts are not subject to public opinion, as the judges are not elected; rather, the justices are appointed for life or until they decide to step down. While one hopes that the judiciary branch will rule without bias, it is impossible to remove preconceived notions and feelings from every case. In this respect they have the power to interpret the Constitution, yet they are above public opinion. Though Supreme Court decisions can be overturned, such as with the Plessy v. Ferguson case, the responsibility carried by Supreme Court justices who operate without the oversight of the people make this branch dangerous in its own right.

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In The Federalist No. 78, Hamilton wrote that the judiciary was "the least dangerous branch" because the courts did not have the power of the executive branch and were not ruled by the political fervors of the legislative branch. The court also did not, he wrote, have the power of "the sword" (referring to the army), and it also lacked the power of "the purse" (control over the treasury). The court's only power, he wrote, was its judgment. 

Some critics argue that the Supreme Court has become too activist at times and that it should restrict itself to the original Constitution. However, compared to the growth of the power of the executive branch, which has massively expanded since the early 1900s, and the political passions of both the left and right wings in the Congress, one might argue that the court system is the least dangerous branch. In addition, the court can't issue policies but can only review lower courts' rulings or the rulings of the executive or legislative branch. Given how long it takes the court to accept and rule on cases, it is more deliberative and less rash than the other branches of government. 

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Hamilton considered the judiciary the "least dangerous branch" because he believed it was the least likely to usurp too much power for itself and thereby undermine the checks and balances of the government. He most feared the executive branch, because he worried that a charismatic President might rally enough support to his cause that he could give himself powers far beyond what the Constitution intended.

He was probably right about the executive branch; Presidents have steadily grown in their power since the founding of the United States, particularly with regard to warfare. The Constitution says that Congress must declare war, but no US military action since 1945 has been accompanied by a formal declaration of war by Congress. Congress has signed off on a number of military actions since then, including the Vietnam War, Iraq War and Afghanistan War, but never formally declared war; and in many other military interventions Congress had no involvement whatsoever, such as the invasion of Grenada, the bombing of Libya, and the ongoing drone war in Syria.

But he may have been wrong to think that Congress would try to attain extra power, whereas the Supreme Court would not. The Supreme Court has expanded its power quite substantially, starting with officially affirming its authority to conduct judicial review in 1803, and continuing through a series of landmark Supreme Court decisions that have shaped US policy just as thoroughly as if they had been passed as legislation by Congress---from the desegregation of schools in 1954 to the legalization of same-sex marriage in 2015. One could argue that they are just interpreting the Constitution as it ought to be (and it's hard to disagree with these particular rulings!), but it really does seem like they are actually expanding the meaning of past legislation to encompass broader groups of people, sort of saying what the law should have said rather than what it actually did or was intended to say.

This is problematic because the Supreme Court is not elected, and once appointed they are in place for life; this makes them clearly the least-democratic of all the branches of government. Hamilton may actually have seen this as a good thing; he was a bit dubious of giving the people too much power over government. But is it really a good thing? Even if we may agree with the outcomes, do we really want such important decisions being made with little or no public input?

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