Alexander Hamilton fought back in Federalist No. 78, pointing out that the judicial branch would "always be the least dangerous to the political rights of the constitution," because it would "be least in a capacity to annoy or injure them." By this, he meant that the judicial scope and function was much more narrowly prescribed than those of the other two branches. "The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."
To reinforce the idea that the judiciary was to be a weaker, passive branch -- only empowered to hear cases brought to it -- he wrote, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In fact, he said, "the judiciary is beyond comparison the weakest of the three departments."
Hamilton argued that contrary to assertions that judicial review would dilute republican government -- divesting elected representatives of their authority -- it actually would strengthen it, because the court would ensure that the Constitution, which is the ultimate expression of the people's will, would remain superior to mere acts of legislation. He also anticipated that scholarly men of virtue, independent of political pressures, would render their decisions based on the law and facts.
It can hardly be denied that some of Brutus' fears have been realized through the years. The courts have hardly remained as limited in scope or as passive as theory suggested they would be. The court has, in many areas, become a super-legislature of expansive scope and, as a practical matter, is not always a passive body, because activist groups have become so mobilized, organized and manipulative that they can manufacture a "case or controversy" on almost any important issue at the drop of a hat. Plus, though most Supreme Court justices have indeed been learned, many have long since abdicated their duty to interpret the Constitution dispassionately and have adopted an activist, results-oriented approach to jurisprudence, which has systematically corrupted the integrity of the Constitution and, thus, of the rule of law and republican government.
The question is whether the court will strike down the manifestly unconstitutional Affordable Care Act and vindicate Alexander Hamilton or uphold it and thereby hammer yet one more nail in the coffin of this nation's precious liberty.