Federalist No. 78 – Judicial Department & Judicial Review

Introduction & Scope of Federalist No. 78

  • Written by Alexander Hamilton about the federal judiciary.

  • Covers how judges are chosen, how long they serve ("tenure"), and their power.

Focus on Tenure: "During Good Behaviour"

  • Judges serve for life, unless they commit misconduct.

  • Hamilton sees this as key to good government:

    • Protects against overreach from monarchs or legislatures.

    • Ensures fair and consistent application of law.

Comparative Power Analysis

  • Executive: Has military power ("the sword").

  • Legislature: Controls money ("the purse") and makes laws.

  • Judiciary: Has "neither force nor will, but merely judgment." It needs the executive to enforce its decisions.

  • This makes the Judiciary the "weakest" branch.

  • Its weakness requires judges to serve permanently to be strong and independent.

Limited Constitutions & Necessity of Judicial Review

  • A limited constitution sets clear boundaries.

  • These rules are useless unless courts can strike down laws that violate them.

  • Courts act as a go-between for the people and the legislature.

  • They uphold the Constitution, which represents the people's highest will.

  • If a law contradicts the Constitution, the Constitution always wins.

\text{Constitution (superior law)} > \text{Statute (inferior law)}

Addressing Fear of Judicial Usurpation

  • Critics worried judges might misuse power.

  • Hamilton argued interpreting laws always carries this risk, which is why judges need independence and a strong sense of duty.

Independence as Shield Against "Ill Humours" & Majority Tyranny

  • Judges must protect:

    1. The Constitution.

    2. Individual rights (especially for minorities).

  • They prevent temporary public moods from leading to unfair laws.

  • A strong judiciary stops harmful legislative actions and builds public trust.

Why Periodical or Popular Re-Appointment Fails

  • If judges had to be re-appointed, they would try to please:

    • The executive or legislature.

    • The public (seeking popularity).

  • Life tenure for "good behaviour" is the only way to ensure they are truly independent.

Qualifications, Scarcity & Incentives

  • Judging requires deep legal knowledge.

  • Few people have the necessary skill and honesty.

  • Short-term jobs wouldn't attract the best legal minds, leading to poor justice.

Historical Precedent & Final Judgment

  • Great Britain showed the value of independent judges with life tenure.

  • The Constitution wisely adopted this system.

Thematic & Philosophical Connections

  • Based on Montesquieu's idea of separating government powers.

  • Laid the groundwork for judicial review (later confirmed in Marbury v. Madison).

  • Emphasizes that the people hold the ultimate power.