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ABSTRACT
Much ink has been spilled over the question of "how" and to "what" extent the Judicial Department of the United States should exercise deference to the political branches in times of war and national security crisis. Scholars have debated whether the judiciary has the institutional ability to decide if national security measures are necessary or if such measures meet the actual national security threat. Over the past two hundred years the judiciary has entertained various theories on what standards of proof should be required of the political branches when they exercise national security powers. This paper will address these issues from a different perspective: Under the Madisonian model, does the judiciary have a role in national security policy, and if so, why? Hamilton described the Judicial Department as the least dangerous branch because it neither controls the sword or the purse. Madison designed a constitutional system in which the Constitution would be the Supreme Law of the Land. With the Constitution as the pantheon of all laws and actions under our system of government, the Supreme Court has developed into the final arbiter of "what" the Supreme Law of the Land allows the three branches of government to do both in peace and war. Concurrent with Madison's and Hamilton's design, history has placed its own requirements on the three branches and has made its own determinations on the power of the judiciary. This paper will argue why the Madisonian and Hamiltonian models as well as history give the judiciary a determinative role in times of war and national crisis.
On June 14, 1788 Alexander Hamilton published his famous Federalist Papers #78 essay defending the independence of the Judicial Department in the proposed Constitution. In defending the constitutional provisions appointing members of the Judicial Department to "hold their Offices during good Behavior" whose "compensation . . . shall not be diminished during their Continuance in Office,"1 Hamilton wrote that the development of these protections, in order to guarantee an independent judiciary, was "one of the most valuable of the modern improvements in the practice of government."2 His reason for why it was one of the most valuable improvements is significant to the question of why the actions of the Bush Administration regarding the...