ABSTRACT
Yates’s argument, in a nutshell, is that the judicial review (that he believes is) authorized by Article 3, section 2, would entail an unaccountable and therefore illegitimate exercise of tremendous power. On the one hand, and against those who, like Hamilton in Federalist 78, would claim that the judiciary, including the Supreme Court, would be conned to the “steady, upright and impartial administration of the laws,”1 Yates argues in Letter XV that “this court will be authorized to decide on the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.”2 In other words, what we now call “strict constructionism” is eectively impossible, because (as Yates argues in Letter XI) judges “will not conne themselves to xed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution”:3 judicial interpretation necessarily requires an interpretation of not merely the letter but also the “spirit” of the laws, and interpretation of the spirit of the laws necessarily leaves room for a great deal of judicial discretion and thus judicial power. us there is no way to ensure that judges will not inject their personal or political preferences in the course of determining whether a given law is or is not consistent with the meaning of the constitution.
