The Federalist Papers clearly recognize that the words on paper of a written constitution are not enough to keep each branch of government within its constitutional bounds. Nowadays, judicial review of constitutionality is a key part of our constitutional structure, though it is nowhere in the original written US Constitution or in any formal Amendment to the US Constitution. The authors of the Federalist Papers would have worried that this would give too much power to the judicial branch of the government. But judicial review seems to have worked pretty well.

Alternatives to judicial review are hard to find. The Federalist Papers #50 (author not clear: Alexander Hamilton or James Madison) argues in particular that a period commission to review the constitutionality of government actions won’t work, based on the experience Pennsylvania had with just such a system, which stipulated constitutional review every seven years by a “Council of Censors.”

There are two big problems with a periodic commission to review constitutionality: it is likely to be partisan because it will be composed of the usual suspects, who were involved in the original decisions, and it is likely to be toothless. This passage from the Federalist Papers #50 makes both points:

If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them … a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives.

The Pennsylvania Council of Censors had met once, in 1783-1784 since the Pennsylvania Constitution of 1776 was adopted. It provided a lot of evidence for these views.

Partisanship of the Pennsylvania Council of Censors. On the Council of Censors being partisan, and the inevitability of partisanship, the Federalist Papers #50 has this to say (distinct passages separated by added bullets):

• … the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution.

• Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

• Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns.

• It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.

• Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.

Toothlessness of the Pennsylvania Council of Censors. The Federalist Papers #50 has less to say on toothlessness of the Council of Censors, but does have this:

I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest.

How has Judicial Review Faired Better? The courts are, of course, quite partisan, but are mostly limited to being reactive to actions of other branches of government. For whatever reason, the courts have been reasonably good at sticking to the rule of only dealing with actual cases and controversies. That is, tough requirements for “standing” for bringing a case have been crucial in keeping the judicial branch from becoming too powerful.

Because the courts deal with one case at a time, it is easier to arrange recusal in the judgment of a decision a judge was previously involved in than in the case of membership or not on something like the Council of Censors that is looking at many different issues. Moreover, the judicial career track now covers much of a judge’s life cycle, so that many judges have not been directly involved in that many legislative branch or executive branch decisions. (Even experience as an executive branch lawyer was often about prejudging the legality of a decision or adjusting a policy toward legal means rather than about making the decision in the first place.) Finally, it takes time for a judge to rise to one of the highest courts and so gain great influence in the judicial branch. And they can serve a long time on one of the highest courts. This puts more time between them and earlier things they were involved in that are related to a case but don’t rise to the level of recusal. That is, one can hope that a high judge’s partisanship is the partisanship of yesterday and not the partisanship of today. Yet the decisions of the legislative or executive branches, or of lower courts, can get reasonably prompt review.

Why hasn’t judicial review been toothless? Here, the fact that it deals with cases piecemeal helps. The typical case is likely to seem individually small in political terms. So the legislative and executive branches won’t be that tempted to interfere with the outcome of a typical case.

Another factor in acquiescence by members of the legislative and executive branches to many judicial decisions is that sometimes the courts agree with a politicians true views, as distinct from the views the politician claims to have in order to get elected.

Finally, for some reason, the voters seem to have accepted the courts as referees of the constitutional system. Complaints about Supreme Court decisions, for example, have often been channeled into the idea of winning elections to control future appointments to the Supreme Court—or in the extreme, packing the court—rather than into the idea of the legislative or executive branch simply ignoring the court.

Below is the full text of the Federalist Papers #50:

FEDERALIST NO. 50

Periodic Appeals to the People Considered

From the New York Packet
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge.

If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. " This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State.

Secondly. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.

Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.

Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

• The Federalist Papers #1: Alexander Hamilton's Plea for Reasoned Debate

• The Federalist Papers #2 A: John Jay on the Idea of America

• The Federalist Papers #2 B: You Trusted the Continental Congress; Trust the Constitutional Convention

• The Federalist Papers #3: United, the 13 States are Less Likely to Stumble into War

• The Federalist Papers #4 A: The States Must Be Prepared to Defend against Aggression by Other Nations

• The Federalist Papers #4 B: National Defense Will Be Stronger if the States are United

• The Federalist Papers #5: Unless United, the States Will Be at Each Others' Throats

• The Federalist Papers #6 A: Alexander Hamilton on the Many Human Motives for War

• The Federalist Papers #6 B: Commercial Republics Also Start Wars with Their Neighbors—Alexander Hamilton

• The Federalist Papers #7 A: Divided, the States Would Fall into Territorial Disputes Likely to Lead to War Between the States—Alexander Hamilton

• The Federalist Papers #7 B: Without Union, Economic Disagreements Would Drive the States to Conflict with One Another—Alexander Hamilton

• The Federalist Papers #8: Without Union, the States Would Either Be Subject to Devastating Wars with Each Other or Would Have Liberty Endangered by their Own Standing Armies—Alexander Hamilton

• The Federalist Papers #9 A: There Has Been Technological Progress in Practical Principles of Republican Government—Alexander Hamilton

• The Federalist Papers #9 B: A Large Confederation May Be More Politically Stable Than a Small Nation—Alexander Hamilton Cites Montesquieu

• The Federalist Papers #10 A: Conflicts Arising from Differences of Opinion Are an Inevitable Accompaniment of Liberty—James Madison

• The Federalist Papers #10 B: The Larger the Republic, the Easier It is to Find Thoughtful Legislators and the Harder It is to Put Together a Majority to do Unjust Things—James Madison

• The Federalist Papers #11 A: United, the States Can Get a Better Trade Deal—Alexander Hamilton

• The Federalist Papers #11 B: Union Will Make Possible a Strong Navy, Allowing America to Chart Its Own Destiny—Alexander Hamilton

• The Federalist Papers #12: Union Makes it Much Easier to Get Tariff Revenue—Alexander Hamilton

• The Federalist Papers #13: Alexander Hamilton on Increasing Returns to Scale in National Government

• The Federalist Papers #14: A Republic Can Be Geographically Large—James Madison

• The Federalist Papers #15: A Government, to be Worthy of the Name, Must Govern Its Citizens, Not Just Its Subordinate Jurisdictions—Alexander Hamilton

• The Federalist Papers #16: Authority of the Federal Government Directly over Individuals Means States Can Only Thwart the Federal Government by Active and Obvious Resistance—Alexander Hamilton

• The Federalist Papers #17: Three Levels of Federal Power

• The Federalist Papers #18: Alexander Hamilton and James Madison Point to the Weakness of Confederations of Cities in Ancient Greece to Argue for a Strong Federal Government

• The Federalist Papers #19: The Weakness of the German Empire, Poland and Switzerland up to the 18th Century is Evidence for the Weakness of Confederations—Alexander Hamilton and James Madison

• The Federalist Papers #20: The Weakness of the United Netherlands up to the 18th Century is Evidence for the Weakness of Confederations—Alexander Hamilton and James Madison

• The Federalist Papers #21 A: Constitutions Need to be Enforced—Alexander Hamilton

• The Federalist Papers #21 B: Alexander Hamilton Complains of the Lack of a Measure Such as GDP Suitable for Apportioning Taxes to the States

• The Federalist Papers #22 A: The Articles of Confederation Lead to Uncoordinated Trade Policy and Military Free-Riding—Alexander Hamilton

• The Federalist Papers #22 B: Supermajority Rules Aren't an Adequate Fix for Departures from One-Person One-Vote—Alexander Hamilton

• The Federalist Papers #22 C: Pillars of Democracy—The Judicial System, Military Loyal to the Constitution, and Police Loyal to the Constitution

• The Federalist Papers #23: The Federal Government Must Be Given Sufficient Power to Accomplish Whatever We Expect the Federal Government to Do—Alexander Hamilton

• The Federalist Papers #24: The United States Need a Standing Army—Alexander Hamilton

• The Federalist Papers #25: Prohibiting a Standing Army in Time of Peace Would Be a Mistake—Alexander Hamilton

• The Federalist Papers #26: Some Part of the Government Must Be Able to Authorize an Army Whenever Necessary, after Being Forced to Fully Debate the Issue—Alexander Hamilton

• The Federalist Papers #27: People Will Get Used to the Federal Government—Alexander Hamilton

• The Federalist Papers #28: The Federal Government and States Can Check One Another’s Power, Reducing the Chance of Abuses—Alexander Hamilton

• The Federalist Papers #29: State Militias such as the National Guard are Not Attractive Tools for Tyrants—Alexander Hamilton

• The Federalist Papers #30: A Robust Power of Taxation is Needed to Make a Nation Powerful

• The Federalist Papers #31: Alexander Hamilton's Attempt at a Formal Argument for a Robust Federal Power of Taxation

• The Federalist Papers #32: The States Retain All Powers Not Explicitly Taken Away by the Constitution—Alexander Hamilton

• The Federalist Papers #33: The 'Necessary and Proper' and Supremacy Clauses Only Make Explicit What the Specified Powers Imply—Alexander Hamilton

• The Federalist Papers #34: War is Expensive. To Defend the Union, the Federal Government Needs an Ample Power of Taxation—Alexander Hamilton

• The Federalist Papers #35 A: Alexander Hamilton as an Economist

• The Federalist Papers #35 B: Alexander Hamilton on Who Can Represent Whom

• The Federalist Papers #36: Alexander Hamilton on Regressive Taxation

• The Federalist Papers #37: Why the Constitution Isn't Perfect—And Why No Constitution Could Be. James Madison

• The Federalist Papers #38—James Madison Analyzes the Proposed Constitution Using the Principle of Opportunity Cost: What is the Alternative to the Consensus of the Constitutional Convention?

• The Federalist Papers #39: James Madison Downplays How Radical the Proposed Constitution Is

• The Federalist Papers #40: James Madison Argues the Constitutional Convention Had the Warrant to Make Its Proposal—and Its Advice Should Be Taken Even If Not

• The Federalist Papers #41: James Madison on Tradeoffs—You Can't Have Everything You Want

• The Federalist Papers #42: Every Power of the Federal Government Must Be Justified—James Madison

• The Federalist Papers #43: The United States Constitution as a Commitment to Democracy at the State Level—James Madison

• The Federalist Papers #44: Constitutional Limitations on the Powers of the States—James Madison

• The Federalist Papers #45: James Madison Predicts a Small Federal Government

• The Federalist Papers #46: Cities and States Have a Strong Position in Struggles with the Federal Government—James Madison

• The Federalist Papers #47: Separating Legislative, Executive and Judicial Powers is a Good Principle, But Perfection in this Regard is Impossible—James Madison

• The Federalist Papers #48: Legislatures, Too, Can Become Tyrannical—James Madison

• The Federalist Papers #49: Constitutional Conventions Should Be Few and Far Between