Federalist No. 78 Excerpts Annotated

Federalist No. 78 by 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.

… 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.¹

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;² …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.³

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;⁴ 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.⁵

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 power; 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.⁶ For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” 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…

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.⁷ 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.⁸

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.⁹

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.¹⁰ 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.

… 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…the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.¹¹

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.¹²

…[Nature and reason] 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…¹³

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.¹⁴

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…¹⁵ 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.¹⁶ 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.

… [The judiciary] not only serves to moderate the immediate mischiefs of [unjust laws] 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.¹⁷ This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.¹⁸ 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.¹⁹ 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.²⁰

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.²¹ 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.²² 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.²³ The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS

Annotations

¹Opponents of the Constitution have objected to the term of office for judges.

²A federal judge remains in office as long as he does the job correctly (perhaps even for lifetime tenure.)

³Judges are best able to be steady and unbiased if they know that the legislative branch cannot remove them from office just because they disagree with the judges’ decisions.

⁴The judiciary is the branch that has the least opportunity to violate constitutional rights.

⁵The judiciary has no control over the government’s budget or military. It must rely on the executive branch to carry out its rulings.

⁶Though judges may sometimes make mistakes or deliberately violate someone’s rights in an individual matter, they cannot endanger the general liberty of the people. This is true as long as the judicial branch remains completely independent from the legislative and executive branches.

⁷The complete independence of the courts is an important protection to the people, especially in a constitution that imposes limits on the legislature.

⁸The Constitution’s guarantees against bills of attainder and ex post facto laws would be useless without courts empowered to hold legislatures to the limits on their power.

⁹The Constitution’s opponents charge that, if the courts can declare laws unconstitutional and void, then the judiciary is stronger than the legislature. They are mistaken, and this will be proven below.

¹⁰No law that is inconsistent with the Constitution and its principles can be legally binding.

¹¹Through the Constitution, which is fundamental law, the people have determined what powers their legislatures should have. The purpose of the courts is to hold the legislatures to the limits the people have set.

¹²The judiciary is not on a higher level than the legislature. The people are superior to both and, through the Constitution, have given each branch a specific job to do.

¹³Since the people themselves are the highest authority for the government, what they have stated in the Constitution is more important than what their representatives write in ordinary law. The courts make sure that the legislature does not get out of bounds.

¹⁴Judges need permanent positions so that they will be able to stand up against laws in which legislatures have abused their powers or violated constitutional principles.

¹⁵The independence of the judiciary is especially important when people make unjust decisions that oppress the rights of those who hold minority opinions.

¹⁶The entire Constitution is binding on both the people and their legislatures until it has been formally amended through the process spelled out in the Constitution itself.

¹⁷Judges must be independent in order to hold the line against unconstitutional laws that result from popular pressure on legislators.

¹⁸An independent judiciary is important even before unjust laws are passed. Legislators know that judges will be watching them, and that sometimes keeps legislators from writing unjust laws in the first place.

¹⁹All thinking people should value anything that helps stop injustice. No one can be sure that he will not be a target of injustice in the future.

²⁰Judges who hold only temporary terms of office cannot be expected to resist pressure from one of the other branches, or from popular opinion, to pass unjust laws.

²¹To do the job of a judge properly requires a great deal of wisdom and knowledge, so there are few people who are well qualified for the role.

²²Individuals who are qualified to be good judges are unlikely be willing to leave other jobs that pay well if the position of judge is risky or temporary.

²³There can be no doubt that judges should have permanent positions as long as they are exercising what the Constitution calls “good behavior.” This means that a judge may hold the job as long as he/she wants, as long as he/she does the job ethically and capably. [A judge who commits unethical or illegal acts can be removed by Congress in the process of impeachment.]