of being debtor to the king being matter of form, and mere words of course, the court is open to all the nation.
When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorised to construe its meaning, and are not under any control.
This power in the judicial, will enable them to mould the government, into any shape they please. The manner in which this may be effected we will hereafter examine.
THE POWER OF THE JUDICIARY (PART III)
See the Headnote to Antifederalist No. 78-79. The first part of the following paper is from the twelfth essay by "Brutus" in the February 7 and 14, 1788 issues of The New-York Journal; the second part is from the first half of the fourteenth essay by the same author, same newspaper, February 28, 1788.
In my last, I showed, that the judicial power of the United States under the first clause of the second section of article eight, would be authorised to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states.
I shall now proceed to show how this power will operate in its exercise to effect these purposes. . . . First, let us inquire how the judicial power will effect an extension of the legislative authority.
Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct the legislature, because it is not easy to conceive how a question can be brought before them in a course of legal discussion, in which they can give a decision, declaring, that the legislature have certain powers which they have not exercised, and which, in consequence of the determination of the judges, they will be bound to exercise. But it is easy to see, that in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds.
It is to be observed, that the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature. The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties, or appointing ambassadors.