Federalist Papers Summary 78

Alexander Hamilton

 

Federalist Papers Summary No. 78

 
 

Federalist Papers Author Alexander Hamilton
Alexander Hamilton

Federalist Papers Summary Number 78

The Federalist Papers Summary No 78: Hamilton
May 28, 1788

This paper begins an examination of the judiciary department of the proposed government.  It examines primarily the term of office for judges but in making the case for lifetime appointments it details the responsibilities of the federal courts.  There are three subjects covered in this and subsequent papers: First, the mode of appointing judges.  Second, the tenure by which they are to hold their places, and third, the partition of the judiciary authority between different courts and their relations to each other. The first, the mode of appointing judges has been covered in the preceding two papers and is not discussed further.  Interestingly this and all remaining papers have the same date.

This paper deals exclusively with the rationale for their tenure which is they hold their offices during good behavior, that is for life.  He begins by comparing the power of the judiciary to the other branches of government and claims the judiciary is the least dangerous to the political rights of the constitution for it controls neither the sword of the executive nor the purse controlled by the legislative.  It has “neither Force nor Will but merely judgment”.  What does this mean?  Force we understand, decisions made by the courts can only be enforced by the executive branch.  Will means the courts can not interpret laws based on the courts desires, or political views, in other words they are not activists.  Since the courts are so weak “the general liberty of the people can never be endangered from that quarter: I (Hamilton) mean so long as the judiciary remains truly distinct from both the legislative and executive.  For I agree that there is no liberty if the power of judging be not separated from the legislative and executive powers.”  These dangers are real because of the weakness of the judiciary and therefore he makes the first important point in the paper that the terms of office must be permanent so as to protect the judiciary from the other two powerful branches of government.

He then goes on to the second important point.  Talking about a limited constitution that gives only enumerated powers to the federal government he states “Limitation of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void”.  As an aside, I find it curious that the Constitution does not explicitly give the courts the sole power to decide constitutionality of the laws even though the issue was discussed during the drafting of the Constitution.  Hamilton describes it as a duty and their province.  He states “The interpretation of the laws is the proper and peculiar province of the courts.  A constitution is in fact, and must be, regarded by the judges as a fundamental law.  It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”  He clearly believes the courts have the exclusive responsibility and power to judge the constitutionality of federal law but it is not clear that all of the founders believed that.  It was not until 1803 that the Supreme Court declared that it had not only the duty but it was their province to decide unconstitutionality, called judicial review.  Both Jefferson and Madison argued prior to 1803 that the states collectively had a right to declare laws unconstitutional.  One can realistically wonder if the framers of the Constitution wanted the courts to be the sole voice on federal law constitutionality.

Hamilton continues by stating that the Constitution is the will of the people and the legislature cannot  substitute its will for that of the people.  Further the courts are to be governed by the will of the people rather than the will of the legislature if there is a conflict.  This is the basis for saying that the courts are not superior to the legislature even though they can void their laws and that both are inferior to the power of the people.

Hamilton brushes over a point that has become of great importance and was even considered a significant problem with the Constitution at the time; what happens if the judges decide to not void laws that are actually unconstitutional or interpret the Constitution to their own will rather than that of the people as written in the document.  He says if this happens it only proves there should be no judges.  Those concerned about this problem mentioned that there was no safeguard in the Constitution to prevent this.  There is no authority to review judicial decisions from the supreme court and no means for the legislature, executive or the people to correct this situation when it occurs as it has today.

He goes on to make the case for permanent tenure and independence of the judges as the bulwark against legislative encroachment.   As an example he considers a situation where the public for some reason desires an unconstitutional law and the legislature obliges.  The judges must be independent to uphold the Constitution in the face of laws instigated by a major voice of the community..  The remainer of the paper continues the arguments for life long appointments based on being independent from the other branches of government and factions within the population, and the requirement for obtaining the most learned in the law and precedence to serve which would not happen if terms were short.

 

Summary Written by Donald Mellon

 

Federalist Papers Summaries Index Page

 

Read The Federalist Papers No. 78