should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought, of course, to
be preferred; in other words, the Constitution ought to be preferred to
the statute, the intention of the people to the intention of their
agents....

"This independence of the judges is equally requisite to guard the
Constitution and the rights of individuals from the effects of those ill
humours which the arts of designing men, or the influence of particular
conjunctures, sometimes disseminate among the people themselves, and
which, though they speedily give place to better information, and more
deliberate reflection, have a tendency, in the mean time, to occasion
dangerous innovations in the government, and serious oppressions of the
minor party in the community."[59]

This argument for an independent judiciary, which has been adopted by
all writers who have attempted to defend the system, may be summarized
as follows:

The Constitution being the solemn and deliberate expression of the will
of the people, is the supreme law of the land. As such it enumerates the
powers of the several branches of the government and sets limits to
their authority. Any act, therefore, on the part of the agents or
representatives of the people, which exceeds the authority thus
delegated, is in violation of the fundamental law and can not bind those
whom they profess to represent.

These checks upon the agents and representatives of the people can not
be enforced, however, if each branch of the government is to be
permitted to determine for itself what powers the Constitution has
conferred upon it. Under such a system Congress would overstep the
limits which have been placed upon its authority and substitute its own
will for the will of the people. To prevent this the framers of the
Constitution placed the courts, in their scheme of government, between
the people and the legislature and gave them power to determine and
enforce the constitutional limitations on the authority of Congress.
This put the Constitution and the rights and liberties of the people
under the protection of their natural guardian, the Federal judiciary,
and thereby secured the people against the danger of legislative
tyranny.

We must not forget the circumstances under which Hamilton wrote this
defence of the Federal judiciary. Although the Constitutional Convention
had spared no pains to prevent the publication of its proceedi