ustice, but really in a
spirit of hypocrisy, to annul the will of the majority of the people,
even though the right of the people to exercise their will, in the
matters at issue, be clearly granted them in the Constitution.

No, rejoined Hamilton, thus driven to the wall, judges never will so
abuse their trust. The duty of the judge requires him to suppress his
_will_, and exercise his _judgment_ only. The Constitution will be
before him, and he will have only to say whether authority to legislate
on a given subject is granted in that instrument. If it be, the
character of the legislation must remain a matter of legislative
discretion. Besides, you must repose confidence somewhere, and judges,
on the whole, are more trustworthy than legislators. How can you say
that, retorted the opposition, when you, better than most men, know the
line of despotic legal precedents from the Ship Money down to the Writs
of Assistance?

Looking back upon this initial controversy touching judicial functions
under the Constitution, we can hardly suppose that Hamilton did not
perceive that, in substance, Jefferson was right, and that a bench
purposely constructed to pass upon political questions must be
politically partisan. He knew very well that, if the Federalists
prevailed in the elections, a Federalist President would only appoint
magistrates who could be relied on to favor consolidation. And so the
event proved. General Washington chose John Jay for the first Chief
Justice, who in some important respects was more Federalist than
Hamilton, while John Adams selected John Marshall, who, though one of
the greatest jurists who ever lived, was hated by Jefferson with a
bitter hatred, because of his political bias. As time went on matters
grew worse. Before Marshall died slavery had become a burning issue, and
the slave-owners controlled the appointing power. General Jackson
appointed Taney to sustain the expansion of slavery, and when the
anti-slavery party carried the country with Lincoln, Lincoln supplanted
Taney with Chase, in order that Chase might stand by him in his struggle
to destroy slavery. And as it has been, so must it always be. As long as
the power to enact laws shall hinge on the complexion of benches of
judges, so long will the ability to control a majority of the bench be
as crucial a political necessity as the ability to control a majority in
avowedly representative assemblies.

Hamilton was one of the few great jurists