Federalist No.78

The Judiciary Department

Wednesday, May 28, 1788

Alexander Hamilton


Federalist Paper 78 moves on to the role of the judiciary and offers a defence of the permanent tenure of judges.


Hamilton says that the need for a federal judicial court is not in dispute. What is in question is how to constitute the judiciary and its extent.


Concerning the constitution of the judiciary he identifies three issues: the method of appointment; the tenure of judges; and the partition of the judiciary authority between different courts. This last point is not covered in this paper.


Concerning the first point, Hamilton reasons that since the appointment for judges follows the same rules as has been discussed in the previous two Federalist Papers, so there is no purpose in reiterating the arguments.


The issue of tenure is the major concern of the rest of this paper. All judges, Hamilton says, who may be appointed by the United States are to hold their offices during good behaviour. In other words, unless a judge does something to cause impeachment and removal from their position, they have life tenure. Hamilton’s justifications for this lie broadly with the weaker position of the judiciary in relation to the legislative and executive branches, the need of the judiciary to be independent and the onerous educational requirements of the position.

The Weakness of the Judiciary


The executive dispenses the honors and 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 the sword or the purse … It may be truly said to have neither force nor will. The judiciary merely passes judgement, and as such it cannot successfully attack the executive or legislative branches, nor can it generally endanger the liberty of the people. The judiciary’s permanency of tenure provides it with some independence from the other branches of government.

The Need for Judicial Independence


The judiciary needs independence from the other branches of government so that it may operate without threat or intimidation, so as to remain impartial, that it might be guided by law and not opinion.


Hamilton takes care to explain the special position of the judiciary within the system. He points out that a simplistic appraisal of the judicial role would assume that it is not the least powerful branch, but the strongest. This assumption would be based upon the judiciary’s power to overturn legislation: that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. This understanding of the position infers that the courts are political opponents of the other branches of government, which misunderstands the role of the judiciary. It is far more rational to suppose, Hamilton says, that the courts were designed to be an intermediate body between the people and the legislature. This characterisation is predicated upon a fundamental understanding of the role of the Constitution, that it serves the people, not the government.


In fact, Hamilton goes so far as to point out that, in theory, the Constitution can be put aside by the people in favour of a new arrangement (just as the Articles of Confederation are set aside for the Constitution of the United States of America). But Hamilton asserts that until the Constitution is set aside by the common will of the people, the people are bound by its laws and the government is bound to uphold those laws and act within their constraints. It must protect the Constitution until such time as it is annulled. In other words, the people might agitate for the annulment of the Constitution, but the elected government and judges cannot.


This argument implies a hierarchy within the system and the laws which form the society. A constitution is, in fact, and must be regarded by the judges, as a fundamental law.


This brings us back to the idea that the judiciary is the intermediary between the people and the legislature. Hamilton’s point is that the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. This is fundamental to republicanism: the government is answerable to the people while the Constitution governs all laws made. In theory, a law that is at variance with the Constitution must be reconciled with the Constitution or removed. The Constitution serves the people, so the role of the judiciary is to protect the rights of the people and interpret the Constitution, not to serve any particular political agenda. This means the judiciary is not above the legislature, but is tasked with interpreting the law and maintaining its consistency.


Hamilton points out there are various means by which the judiciary maintain this consistency. One way is to prefer more recent laws to older laws when they are at variance, which is customary rather than prescribed. (This is not to be confused with the law of precedent, which governs judicial decisions by showing how laws are to be interpreted based upon past cases. Precedent is used to ensure the law is applied consistently and fairly.) However, the prior act of a superior ought to be preferred to the subsequent act of an inferior.


This is where the judiciary differs from the legislature, since the judiciary is deemed to have no will of its own. In judging it must conform to laws, precedent or make judgements over conflicting laws based upon recency and relevance, but the judiciary cannot overturn the weight of a law on the pretense of a repugnancy; that is, the judiciary cannot ignore laws it doesn’t like. To do so would be to go beyond that role of interpreting the law. Instead, it would be making the law, which is the role of the legislature.


A permanent tenure removes the judiciary from the threat of reprisal, allows them to develop an interpretation of law over a period of time, and removes the changeable nature of politics from their concern.


Hamilton makes a case that the judiciary has a social role to play. It is obvious that it might protect the rights of an individual but he also mentions a particular class of citizens. He goes further to state that the judiciary has a role as a moral check upon governments: (to have more influence upon the character of our governments.) Hamilton characterises the judiciary as having integrity and moderation, which has 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. Further, the judiciary’s impartiality means it may displease someone with one decision, but the next day might defend or uphold their interests with another.


Without tenure and independence, the judiciary could not fulfil these roles. Periodical appointments would remove the ability of the judiciary to remain independent and make them more beholden to the authority which appointed them.

Educational Requirements


Hamilton’s final argument is a practical one: that judges’ power to make decisions is governed by the Constitution, a set of laws and a growing body of precedents which take a long time to study and master. There would be few people with the requisite knowledge to become a judge and fewer still who possessed the personal qualities necessary for conduct and impartiality required of judges. To make the appointment of judges periodical would be to waste talent, knowledge and experience, and force the State to appoint less able and less qualified people to fill the positions periodically.

11 December 2019