Policy Disagreements with the United States Sentencing Guidelines: A Welcome Expansion of Judicial Discretion or the Beginning of the End for the Sentencing Guidelines

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Article III of the Constitution confers upon federal judges the duty to decide cases and controversies. The "case or controversy" requirement distinguishes the judiciary from the legislative and executive branches of government, which make and enforce laws of general application for the benefit of the entire Republic. As Alexander Hamilton declared in Federalist No. 78, the judiciary" may truly be said to have neither FORCE nor WILL, but merely judgment." For that reason, Hamilton argued that the judiciary would be the "least dangerous" branch of the federal government. Hamilton's argument depended, of course, on the caveat that "[the courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."