Now, at length, exclaimed the Jeffersonian in triumph, you admit our thesis.  You propose to clothe judges with the highest legislative functions, since you give them an absolute negative on legislation, and yet you decline to impose on them the responsibility to a constituency, which constrains other legislators.  Clearly you thus make them autocratic, and in the worst sense, for you permit small bodies of irresponsible men under pretence of dispensing justice, 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.