Federalist No. 78

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Alexander Hamilton, author of Federalist No. 78


Titled "The Judiciary Department," Federalist No. 78 was published May 28, 1788 and first appeared in a newspaper on June 14 of the same year. It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the first of six essays by Hamilton on this issue. In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life.

The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by American jurists. Of all the essays, No. 78 is the most cited by the justices of the United States Supreme Court.[1]

In Federalist No. 78, Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." There was little concern that the judiciary might be able to overpower the political branches; since Congress controlled the flow of money and the President the military, courts did not have nearly the same clout from a constitutional design standpoint. The Judiciary would depend on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. [2]

Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency. Hamilton viewed this as a protection against abuse of power by Congress.

Controls On Judicial Conduct[edit]

The fundamental debate that Hamilton and his Anti-Federalist rival "Brutus" addressed was over the degree of independence to be granted to federal judges, and the level of accountability to be imposed upon them. In England, a judge can be removed from office "upon the address of both Houses of Parliament." [3] Moreover, as the Act of Settlement 1701 was a mere law, the judicial independence it provided could be abrogated wholesale by an act of Parliament.[4] Similarly, English judges were beholden to Parliament, in the sense that their judgments can be overturned by that body. Brutus took the position that the Constitution should adopt the English system in toto (with minor modifications); Hamilton defended the present system.

Good Behavior Tenure[edit]

In England, although most agents of the Crown served "at the pleasure of the King," public officials were often granted a life tenure in their offices.[5] Lesser lords were given the authority to bestow life tenure, which created an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security.[6] Without some kind of effective control upon their conduct, this would engender intolerable injustice, as the King’s ministers would be free to 'vent their spleen' upon defenseless subjects with impunity.

The English solution to this problem was to condition the holding of office upon good behavior, as enforced by the people through the writ of scire facias. Although it was technically a writ of the sovereign, this power concerned only the interests of his subjects; as the King exercised it only as parens patriae, he was bound by law to allow the use of it to any subject interested. Sir William Blackstone explains in his landmark treatise on the common law, Commentaries on the Laws of England:


Violations of good behavior tenure at common law included "abuse of office, nonuse of office, and refusal to exercise an office,"[8] and the "oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office, [which could be prosecuted] by information in the court of king's bench."[9] As the remedy of the writ of scire facias was available in every one of the colonies,[10] its efficacy as a deterrent against abuse of judicial office was assumed rather than debated.

Legislative Review Of Judicial Decisions[edit]

The primary point of contention between Hamilton and Brutus was in the concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.[11] Hamilton conceded that no federal judge had the legal authority to impose his or her will on the people in defiance of the Constitution:



Brutus pointed out that the Constitution did not provide an effective mechanism for controlling judicial caprice:


Hamilton viewed this apparent flaw in constitutional design as more of a virtue than a vice:


It appears that Hamilton is relying on the efficacy of the writ of scire facias.[citation needed]

Judicial Review[edit]

Federalist No. 78 describes the process of judicial review, in which the federal courts review statutes to determine whether they are consistent with the Constitution and its statutes. Federalist No. 78 indicates that under the Constitution, the legislature is not the judge of the constitutionality of its own actions. Rather, it is the responsibility of the federal courts to protect the people by restraining the legislature from acting inconsistently with the Constitution:


Federalist No. 78 views the judicial branch as inherently weak because of their inability to control the money, nor the military of the country. The only power of the judicial branch is the power of judgement:


Because of the courts' weakness, Federalist No. 78 sees the possibility of corruption using judicial review a non-issue. The people will never be in danger if the structure of the government written up in the Constitution remains. It also asserts that judgement needs to be removed from the groups that make the legislation and rule:


Federalist No. 78 views Supreme Court Justices as an embodiment of the Constitution, a last group to protect the foundation laws set up in the Constitution. This coincides with the view above that the judicial branch is the branch of judgement:


According to Federalist No. 78, the federal courts have a duty to interpret and apply the Constitution, and to disregard any statute that is inconsistent with the Constitution:


Federalist No. 78 argues that the power of judicial review should be used by the judicial branch to protect the liberties guaranteed to the people by the Constitution and to provide a check on the power of the legislature:



Federalist No. 78 therefore indicates that the federal judiciary has the power to determine whether statutes are constitutional, and to find them invalid if in conflict with the Constitution. This principle of judicial review was affirmed by the Supreme Court in the case of Marbury v. Madison (1803).


  1. ^ "Fifteen Curious Facts about The Federalist Papers" by Dan T. Coenen from University of Georgia School of Law (Publication date: 4-1-2007)
  2. ^ Bickel, Alexander M. "The Least Dangerous Branch." Yale University Press; 2 Edition, 1986.
  3. ^ Act of Settlement, Part III, para. 8 (G.B. 1701).
  4. ^ See, Robertson v. Baldwin, 165 U.S. 275, 297 (1897) (Harlan, J., dissenting).
  5. ^ See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer).
  6. ^ See e.g., Harcourt v. Fox, 1 Show. 426 (K.B. 1692) (re: clerk of the peace).
  7. ^ 3 Blackstone, Commentaries 260-61; see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).
  8. ^ Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (quoting Coke's Institutes).
  9. ^ 4 Blackstone, Commentaries at 140-41.
  10. ^ Prakash at 102-114.
  11. ^ John Paul Stevens [Associate Justice, United States Supreme Court], “Two Questions About Justice,” 2003 Ill. L. Rev. 821
  12. ^ Anti-Federalist 78-79 ("Brutus").[13]

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