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The Age of the Judge

Alexander Hamilton, the renowned author of many of the Federalist Papers that set out the rationale for adopting the US Constitution, had no doubt about the relative weight of the three great powers of state. In Federalist No. 78, he wrote that the executive commands ``the power of the sword,'' thus the instrument of legitimate violence. The legislature commands the ``power of the purse'' and so makes all the rules. But the judiciary ``has no influence over either the sword or the purse,'' it has ``neither Force nor Will, but merely judgement,'' making it ``beyond comparison the weakest of the three departments in power.''

Hamilton went on to make the case for the independence of judges in order to strengthen their position, and this case remains unassailable. Beyond that, however, the observer of contemporary politics will hardly recognize the picture drawn by America's great constitutional theorist.

For the American President, the appointment of Supreme Court justices is of major importance because the Court has the power to determine the course of affairs in important respects, as in matters of racial equality. In Germany, many controversial political issues are taken to the Constitutional Court by minorities defeated in parliament.

In Italy and also in Spain, judges (in both cases, investigating judges) seem to influence political debate more than the interplay of government and opposition. Even in Britain, where the sovereignty of parliament was until recently sacrosanct, and the separation of powers underdeveloped, a Supreme Court will now be created to scrutinize political decisions on the basis of the European Convention of Human Rights. How did it come about that the third power is by no means ``the weakest'' nowadays? Is this right?