Federalist 78 Review

Flashcards based on Alexander Hamilton's Federalist 78, covering the nature, importance, and structure of the judicial department, with a focus on judicial tenure, independence, and the concept of judicial review.

Who is the author of Federalist 78 and what is its main subject?

Alexander Hamilton (under the pseudonym Publius) authored Federalist 78, which examines the judiciary department of the proposed government, particularly concerning the tenure of judges.

What three main aspects of the judiciary does Federalist 78 initially outline for examination?

Federalist 78 primarily discusses: 1) The mode of appointing judges, 2) The tenure by which they are to hold their places, and 3) The partition of judicial authority between different courts and their relations.

What is the proposed tenure for judges appointed by the United States according to the convention plan, and why is this provision considered valuable?

Judges are to hold their offices "during good behavior." This tenure is considered valuable as it acts as an excellent barrier to the despotism of a prince in a monarchy and to the encroachments and oppressions of the representative body in a republic, securing a steady, upright, and impartial administration of the laws.

Why is the judiciary department described as the "least dangerous" branch of government?

The judiciary is considered the least dangerous because it has no influence over the "sword" (executive) or the "purse" (legislative), possesses neither "FORCE nor WILL," but merely judgment, making it incapable of actively injuring the political rights of the Constitution.

What is considered an "indispensable ingredient" for the judiciary's firmness and independence, and why?

Permanency in office (tenure during good behavior) is considered indispensable because the judiciary, due to its natural feebleness, is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches, and permanency contributes most to its stability and independence.

How are the limitations defined in a "limited Constitution" preserved in practice?

Limitations in a limited Constitution are preserved 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.

What is the "proper and peculiar province" of the courts concerning legal interpretation, especially regarding the Constitution?

The interpretation of the laws is the proper and peculiar province of the courts. Judges must regard the Constitution as a fundamental law and, in cases of irreconcilable variance between a statute and the Constitution, the Constitution (the superior obligation) ought to be preferred.

Does the doctrine of judicial review, where courts declare legislative acts void, imply a superiority of the judicial to the legislative power?

No, it does not. This doctrine only supposes that the power of the people, declared in the Constitution, is superior to both the legislative and judicial powers. Judges must be governed by the fundamental laws (Constitution) rather than by those which are not fundamental (statutes) when they conflict.

What is a strong argument for the permanent tenure of judicial offices when considering the courts as "bulwarks of a limited Constitution against legislative encroachments"?

Nothing will contribute so much as permanent tenure to the independent spirit in the judges, which is essential to the faithful performance of their arduous duty in guarding the Constitution against legislative overreach.

Beyond protecting against legislative encroachments, what other societal function does the independence of judges serve?

Judicial independence also guards the Constitution and individual rights from the effects of "ill humors" (momentary inclinations or erroneous opinions) that may disseminate among the people, preventing dangerous innovations in government and serious oppressions of minority parties.

Why are "periodical appointments" or temporary commissions for judges considered fatal to their necessary independence?

Periodical appointments would create a danger of improper complaisance to the appointing power (whether Executive, Legislature, both, or the people), leading judges to consult popularity or the will of others rather than solely the Constitution and laws.

What additional reason supports the permanency of judicial offices, related to the qualifications required for judges?

The voluminous and complex nature of laws requires long and laborious study, meaning few individuals possess the necessary skill and integrity to be judges. Temporary tenure would naturally discourage such qualified characters from leaving lucrative practices to accept a seat on the bench, thereby compromising the administration of justice.