The question which underlay all other questions, down to the Civil War, was the determination of the seat of sovereignty.  Hamilton and the Federalists held it to be axiomatic that, if the federal government were to be more than a shadow, it must interpret the meaning of the instrument which created it, and, if so, that it must signify its decisions through the courts.  Only in this way, they argued, could written limitations on legislative power be made effective.  Only in this way could statutes which contravened the Constitution be set aside.[7]

Jefferson was abroad when Hamilton wrote The Federalist, but his views have since been so universally accepted as embodying the opposition to Hamilton, that they may be conveniently taken as if they had been published while the Constitution was under discussion.  Substantially the same arguments were advanced by others during the actual debate, if not quite so lucidly or connectedly then, as afterward by him.

Very well, said Jefferson, in answer to Hamilton, admitting, for the moment, that the central government shall define its own powers, and that the courts shall be the organ through which the exposition shall be made, both of which propositions I vehemently deny, you have this result:  The judges who will be called upon to pass upon the validity of national and state legislation will be plunged in the most heated of controversies, and in those controversies they cannot fail to be influenced by the same passions and prejudices which sway other men.  In a word they must decide like legislators, though they will be exempt from the responsibility to the public which controls other legislators.  Such conditions you can only meet by making the judicial tenure of office ephemeral, as all legislative tenure is ephemeral.

It is vain to pretend, continued he, in support of fixity of tenure, that the greater the pressure on the judge is likely to be, the more need there is to make him secure.  This may be true of judges clothed with ordinary attributes, like English judges, for, should these try to nullify the popular will by construing away statutes, Parliament can instantly correct them, or if Parliament fail in its duty, the constituencies, at the next election, can intervene.  But no one will be able to correct the American judge who may decline to recognize the law which would constrain him.  Nothing can shake him save impeachment for what is tantamount to crime, or being overruled by a constitutional amendment which you have purposely made too hard to obtain to be a remedy.  He is to be judge in his own case without an appeal.

Nowhere in all his long and masterly defence of the Constitution did Hamilton show so much embarrassment as here, and because, probably, he did not himself believe in his own brief.  He really had faith in the English principle of an absolute parliament, restrained, if needful, by a conservative chamber, like the House of Lords, but not in the total suspension of sovereignty subject to judicial illumination.  Consequently he fell back on platitudes about judicial high-mindedness, and how judges could be trusted not to allow political influences to weigh with them when deciding political questions.  Pushed to its logical end, concluded he, the Jeffersonian argument would prove that there should be no judges distinct from legislatures.[8]