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Federalist No. 78

Federalist No. 78 is one of the 85 essays written by Alexander Hamilton under the pseudonym "Publius" as part of the Federalist Papers, a series of writings advocating for the ratification of the U.S. Constitution. Published on May 28, 1788, this essay specifically addresses the judiciary and provides an argument in favor of the establishment and role of a federal judiciary under the Constitution.

Main Themes of Federalist No. 78:

  1. Judicial Independence:

    • Hamilton argues that an independent judiciary is essential for protecting individual rights and ensuring that the rule of law is maintained. He emphasizes that judges should have life tenure (i.e., hold office during "good behavior") so that they can make decisions based on the law, free from political pressure or temporary popular sentiment.

    • This was in contrast to other branches of government, where elected officials might be swayed by short-term political considerations. Judicial independence, Hamilton argues, allows judges to interpret the law impartially and uphold constitutional principles without fear of political retribution.

  2. Judicial Review:

    • Although Hamilton does not explicitly use the term "judicial review," he discusses the role of the judiciary in interpreting the Constitution and striking down laws that conflict with it. He argues that the courts should have the authority to review legislative actions and executive actions to ensure they comply with the Constitution, thereby acting as a check on the powers of the other branches of government.

    • Hamilton asserts that this power of judicial review is crucial to prevent legislative overreach and protect citizens' rights. The courts, he argues, are the "safeguard" of the Constitution's limits on government power.

  3. The Judiciary as the "Least Dangerous Branch":

    • Hamilton famously describes the judiciary as the "least dangerous" branch of government. He points out that the judiciary has neither the power of the purse (money, which is controlled by Congress) nor the power of the sword (military force, which is controlled by the president). The judiciary can only act through its decisions and lacks the means to enforce its rulings without cooperation from the other branches.

    • Because the judiciary cannot enforce its decisions or raise funds, Hamilton argues that it is the least likely to pose a threat to individual liberties or to become tyrannical. Its main function is to interpret and apply the law in a manner consistent with the Constitution.

  4. Protection of the Constitution:

    • Hamilton emphasizes that the judiciary's primary role is to protect the Constitution from infringement by the legislature or executive. The courts ensure that laws passed by Congress or actions taken by the executive do not violate the Constitution's protections of individual rights and the separation of powers. This reinforces the notion of the judiciary as a safeguard for the rights of the people and the structural integrity of the government.

  5. Appointment and Tenure of Judges:

    • Hamilton defends the provision for life tenure for federal judges, arguing that it ensures stability and impartiality in the judiciary. Without life tenure, judges might be subject to political pressures from the legislative or executive branches, undermining their independence and ability to make decisions based solely on the law.

    • He also discusses the process of appointing judges (by the president, with the advice and consent of the Senate), stating that this process is designed to ensure that qualified and impartial individuals are selected to serve as judges.

Significance of Federalist No. 78:

  1. Establishment of Judicial Review: While judicial review (the power of courts to declare laws unconstitutional) is not explicitly mentioned in the Constitution, Federalist No. 78 laid the groundwork for it. The idea was later formalized in Marbury v. Madison (1803), where Chief Justice John Marshall asserted the judiciary’s role in reviewing the constitutionality of laws.

  2. Foundational Argument for Judicial Independence: Hamilton's argument for judicial independence has remained a core principle of the American legal system. The idea that judges should be insulated from political pressures has been a key feature of U.S. law, ensuring that judicial decisions are based on the law rather than shifting political dynamics.

  3. Role of the Judiciary in Safeguarding the Constitution: The essay contributed to the understanding of the judiciary's role in maintaining the Constitution’s authority and acting as a check on potential abuses by the other branches of government.

Summary:

Federalist No. 78 is a crucial essay that justifies the role of an independent judiciary in the U.S. government. Hamilton defends the idea of lifetime appointments for judges, arguing that it ensures judicial independence and impartiality. He also discusses the importance of the judiciary in reviewing laws and protecting the Constitution from unconstitutional actions by the legislative or executive branches. The essay outlines the judiciary's function as the "least dangerous" branch and stresses its importance in preserving the principles of democracy and the rule of law.