The intersection of historical interpretation and modern political discourse often leads to skewed narratives. Josh Hammer’s latest argument, invoking Alexander Hamilton to justify former President Donald Trump’s stance against the courts, is a prime example of this phenomenon. While Hammer selectively cites The Federalist Papers to claim judicial overreach, he conveniently ignores Hamilton’s explicit warnings against unchecked executive power.
A Partial Reading of Federalist No. 78
Hammer leans on Federalist No. 78 to argue that the judiciary is functionally powerless without executive enforcement. He highlights Hamilton’s assertion that courts must “depend upon the aid of the executive arm even for the efficacy of its judgments.” However, this selective quotation omits the broader point Hamilton makes in the same essay: judicial independence is essential to protect against “dangerous innovations in the government, and serious oppressions of the minor party in the community.”
Hamilton’s vision was not one of a weak judiciary subject to executive whims. Instead, he viewed an independent judiciary as a safeguard against authoritarian impulses. The omission of this critical context distorts the intended meaning of the passage and misrepresents Hamilton’s philosophy.
The Historical Reality of Checks and Balances
While Hamilton advocated for a strong executive branch, he also emphasized the necessity of constraints. In Federalist No. 1, he warned that history shows those who claim to champion the people often “begin their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”
The American system of checks and balances was designed precisely to prevent such a scenario. The courts are tasked with interpreting the law, and their authority is not contingent upon executive approval. Hammer’s implication that Trump’s actions should bypass judicial review is not a defense of constitutional principles but rather a challenge to them.
Trump’s Legal Battles: Judicial Overreach or Executive Overreach?
Hammer frames Trump’s extensive record of legal injunctions as proof of judicial overreach. The reality is quite different. The courts have consistently ruled against Trump because his policies have frequently violated legal standards.
Other presidents, including Bill Clinton, Barack Obama, and Joe Biden, have also faced legal challenges. However, their injunction rates were significantly lower because they did not, in Hammer’s own words, “flood the zone” with legally dubious actions. The volume of injunctions against Trump does not indicate a rogue judiciary—it signals an executive unwilling to adhere to legal boundaries.
The Danger of Undermining Judicial Authority
Hammer’s conclusion that the judiciary’s standing will erode is correct, but for the wrong reasons. A judiciary that is ignored or undermined by an uncooperative executive loses its ability to enforce constitutional norms. This is not a positive development—it is a crisis.
By suggesting that judicial authority should be diminished, Hammer is advocating for a shift toward a system where executive power goes unchecked. Such a model is antithetical to the principles Hamilton championed and dangerous for American democracy.
