Federalist No. 78

An examination of the judiciary department of the proposed government
Federalist Papers

Date Created:

Place Created: New York

Year Created: 1788

Description: Federalist No. 78 is an essay by Alexander Hamilton published under the pseudonym
Publius. Titled "The Judiciary Department", Federalist No. 78 was written to explain and
justify the structure of the judiciary under the proposed Constitution of the United States.
In particular, it addresses concerns by the Anti-Federalists over the scope and power of
the federal judiciary. The Federalist Papers are frequently cited by U.S. judges as a
foundational text for interpreting the Constitution, but are not law. Of all the essays, No.
78 is the most cited by the justices of the United States Supreme Court.

Text of Document:

The Judiciary Department
From McLEAN'S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of the proposed
government.
In unfolding the defects of the existing Confederation, the utility and necessity of a
federal judicature have been clearly pointed out. It is the less necessary to recapitulate
the considerations there urged, as the propriety of the institution in the abstract is not
disputed; the only questions which have been raised being relative to the manner of
constituting it, and to its extent. To these points, therefore, our observations shall be
confined.
The manner of constituting it seems to embrace these several objects: 1st. The mode of
appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The
partition of the judiciary authority between different courts, and their relations to each
other.

First. As to the mode of appointing the judges; this is the same with that of appointing
the officers of the Union in general, and has been so fully discussed in the two last
numbers, that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold their places; this chiefly
concerns their duration in office; the provisions for their support; the precautions for their
responsibility.
According to the plan of the convention, all judges who may be appointed by the United
States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the
most approved of the State constitutions and among the rest, to that of this State. Its
propriety having been drawn into question by the adversaries of that plan, is no light
symptom of the rage for objection, which disorders their imaginations and judgments.
The standard of good behavior for the continuance in office of the judicial magistracy, is
certainly one of the most valuable of the modern improvements in the practice of
government. In a monarchy it is an excellent barrier to the despotism of the prince; in a
republic it is a no less excellent barrier to the encroachments and oppressions of the
representative body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial administration of the laws.
Whoever attentively considers the different departments of power must perceive, that, in
a government in which they are separated from each other, the judiciary, from the
nature of its functions, will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or injure them. The
Executive not only dispenses the honors, but holds the sword of the community. The
legislature not only commands the purse, but prescribes the rules by which the duties
and rights of every citizen are to be regulated. The judiciary, on the contrary, has no
influence over either the sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution whatever. It may truly be said to
have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon
the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves
incontestably, that the judiciary is beyond comparison the weakest of the three
departments of power1; that it can never attack with success either of the other two; and
that all possible care is requisite to enable it to defend itself against their attacks. It
equally proves, that though individual oppression may now and then proceed from the
courts of justice, the general liberty of the people can never be endangered from that
quarter; I mean so long as the judiciary remains truly distinct from both the legislature
and the Executive. For I agree, that "there is no liberty, if the power of judging be not
separated from the legislative and executive powers."2 And it proves, in the last place,
that as liberty can have nothing to fear from the judiciary alone, but would have every
thing to fear from its union with either of the other departments; that as all the effects of
such a union must ensue from a dependence of the former on the latter, notwithstanding
a nominal and apparent separation; that as, from the natural feebleness of the judiciary,
it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate

branches; and that as nothing can contribute so much to its firmness and independence
as permanency in office, this quality may therefore be justly regarded as an
indispensable ingredient in its constitution, and, in a great measure, as the citadel of the
public justice and the public security.
The complete independence of the courts of justice is peculiarly essential in a limited
Constitution. By a limited Constitution, I understand one which contains certain specified
exceptions to the legislative authority; such, for instance, as that it shall pass no bills of
attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in
practice no other way than through the medium of courts of justice, whose duty it must
be to declare all acts contrary to the manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void,
because contrary to the Constitution, has arisen from an imagination that the doctrine
would imply a superiority of the judiciary to the legislative power. It is urged that the
authority which can declare the acts of another void, must necessarily be superior to the
one whose acts may be declared void. As this doctrine is of great importance in all the
American constitutions, a brief discussion of the ground on which it rests cannot be
unacceptable.
There is no position which depends on clearer principles, than that every act of a
delegated authority, contrary to the tenor of the commission under which it is exercised,
is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his principal; that the servant is
above his master; that the representatives of the people are superior to the people
themselves; that men acting by virtue of powers, may do not only what their powers do
not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their
own powers, and that the construction they put upon them is conclusive upon the other
departments, it may be answered, that this cannot be the natural presumption, where it
is not to be collected from any particular provisions in the Constitution. It is not
otherwise to be supposed, that the Constitution could intend to enable the
representatives of the people to substitute their WILL to that of their constituents. It is far
more rational to suppose, that the courts were designed to be an intermediate body
between the people and the legislature, in order, among other things, to keep the latter
within the limits assigned to their authority. 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. If
there should happen to be an irreconcilable variance between the two, that which has
the superior obligation and validity ought, of course, to be preferred; or, in other words,
the Constitution ought to be preferred to the statute, the intention of the people to the
intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the
legislative power. It only supposes that the power of the people is superior to both; and
that where the will of the legislature, declared in its statutes, stands in opposition to that
of the people, declared in the Constitution, the judges ought to be governed by the latter
rather than the former. They ought to regulate their decisions by the fundamental laws,
rather than by those which are not fundamental.
This exercise of judicial discretion, in determining between two contradictory laws, is
exemplified in a familiar instance. It not uncommonly happens, that there are two
statutes existing at one time, clashing in whole or in part with each other, and neither of
them containing any repealing clause or expression. In such a case, it is the province of
the courts to liquidate and fix their meaning and operation. So far as they can, by any
fair construction, be reconciled to each other, reason and law conspire to dictate that
this should be done; where this is impracticable, it becomes a matter of necessity to
give effect to one, in exclusion of the other. The rule which has obtained in the courts for
determining their relative validity is, that the last in order of time shall be preferred to the
first. But this is a mere rule of construction, not derived from any positive law, but from
the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative
provision, but adopted by themselves, as consonant to truth and propriety, for the
direction of their conduct as interpreters of the law. They thought it reasonable, that
between the interfering acts of an EQUAL authority, that which was the last indication of
its will should have the preference.
But in regard to the interfering acts of a superior and subordinate authority, of an original
and derivative power, the nature and reason of the thing indicate the converse of that
rule as proper to be followed. They teach us that the prior act of a superior ought to be
preferred to the subsequent act of an inferior and subordinate authority; and that
accordingly, whenever a particular statute contravenes the Constitution, it will be the
duty of the judicial tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a repugnancy, may
substitute their own pleasure to the constitutional intentions of the legislature. This might
as well happen in the case of two contradictory statutes; or it might as well happen in
every adjudication upon any single statute. 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. The observation, if it prove any thing, would prove that there ought to be no
judges distinct from that body.
If, then, the courts of justice are to be considered as the bulwarks of a limited
Constitution against legislative encroachments, this consideration will afford a strong
argument for the permanent tenure of judicial offices, since nothing will contribute so
much as this to that independent spirit in the judges which must be essential to the
faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the
rights of individuals from the effects of those ill humors, which the arts of designing men,
or the influence of particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better information, and more
deliberate reflection, have a tendency, in the meantime, to occasion dangerous
innovations in the government, and serious oppressions of the minor party in the
community. Though I trust the friends of the proposed Constitution will never concur
with its enemies,3 in questioning that fundamental principle of republican government,
which admits the right of the people to alter or abolish the established Constitution,
whenever they find it inconsistent with their happiness, yet it is not to be inferred from
this principle, that the representatives of the people, whenever a momentary inclination
happens to lay hold of a majority of their constituents, incompatible with the provisions
in the existing Constitution, would, on that account, be justifiable in a violation of those
provisions; or that the courts would be under a greater obligation to connive at
infractions in this shape, than when they had proceeded wholly from the cabals of the
representative body. Until the people have, by some solemn and authoritative act,
annulled or changed the established form, it is binding upon themselves collectively, as
well as individually; and no presumption, or even knowledge, of their sentiments, can
warrant their representatives in a departure from it, prior to such an act. But it is easy to
see, that it would require an uncommon portion of fortitude in the judges to do their duty
as faithful guardians of the Constitution, where legislative invasions of it had been
instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of
the judges may be an essential safeguard against the effects of occasional ill humors in
the society. These sometimes extend no farther than to the injury of the private rights of
particular classes of citizens, by unjust and partial laws. Here also the firmness of the
judicial magistracy is of vast importance in mitigating the severity and confining the
operation of such laws. It not only serves to moderate the immediate mischiefs of those
which may have been passed, but it operates as a check upon the legislative body in
passing them; who, perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner compelled, by the very
motives of the injustice they meditate, to qualify their attempts. This is a circumstance
calculated to have more influence upon the character of our governments, than but few
may be aware of. The benefits of the integrity and moderation of the judiciary have
already been felt in more States than one; and though they may have displeased those
whose sinister expectations they may have disappointed, they must have commanded
the esteem and applause of all the virtuous and disinterested. Considerate men, of
every description, ought to prize whatever will tend to beget or fortify that temper in the
courts: as no man can be sure that he may not be to-morrow the victim of a spirit of
injustice, by which he may be a gainer to-day. And every man must now feel, that the
inevitable tendency of such a spirit is to sap the foundations of public and private
confidence, and to introduce in its stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the Constitution, and of
individuals, which we perceive to be indispensable in the courts of justice, can certainly

not be expected from judges who hold their offices by a temporary commission.
Periodical appointments, however regulated, or by whomsoever made, would, in some
way or other, be fatal to their necessary independence. If the power of making them was
committed either to the Executive or legislature, there would be danger of an improper
complaisance to the branch which possessed it; if to both, there would be an
unwillingness to hazard the displeasure of either; if to the people, or to persons chosen
by them for the special purpose, there would be too great a disposition to consult
popularity, to justify a reliance that nothing would be consulted but the Constitution and
the laws.
There is yet a further and a weightier reason for the permanency of the judicial offices,
which is deducible from the nature of the qualifications they require. It has been
frequently remarked, with great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free government. To
avoid an arbitrary discretion in the courts, it is indispensable that they should be bound
down by strict rules and precedents, which serve to define and point out their duty in
every particular case that comes before them; and it will readily be conceived from the
variety of controversies which grow out of the folly and wickedness of mankind, that the
records of those precedents must unavoidably swell to a very considerable bulk, and
must demand long and laborious study to acquire a competent knowledge of them.
Hence it is, that there can be but few men in the society who will have sufficient skill in
the laws to qualify them for the stations of judges. And making the proper deductions for
the ordinary depravity of human nature, the number must be still smaller of those who
unite the requisite integrity with the requisite knowledge. These considerations apprise
us, that the government can have no great option between fit character; and that a
temporary duration in office, which would naturally discourage such characters from
quitting a lucrative line of practice to accept a seat on the bench, would have a tendency
to throw the administration of justice into hands less able, and less well qualified, to
conduct it with utility and dignity. In the present circumstances of this country, and in
those in which it is likely to be for a long time to come, the disadvantages on this score
would be greater than they may at first sight appear; but it must be confessed, that they
are far inferior to those which present themselves under the other aspects of the
subject.
Upon the whole, there can be no room to doubt that the convention acted wisely in
copying from the models of those constitutions which have established GOOD
BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far
from being blamable on this account, their plan would have been inexcusably defective,
if it had wanted this important feature of good government. The experience of Great
Britain affords an illustrious comment on the excellence of the institution.

Source: Library of Congress

Citation: Library of Congress, Federalist Papers: Primary Documents in American History