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The Federalist PapersBy alexander hamilton , james madison , john jay, the federalist papers summary and analysis of essay 78. Hamilton begins by telling the readers that this paper will discuss the importance of an independent judicial branch and the meaning of judicial review. The Constitution proposes the federal judges hold their office for life, subject to good behavior. Hamilton laughs at anyone who questions that life tenure is the most valuable advance in the theory of representative government. Permanency in office frees judges from political pressures and prevents invasions on judicial power by the president and Congress. The judicial branch of government is by far the weakest branch. The judicial branch posses only the power to judge, not to act, and even its judgments or decisions depend upon the executive branch to carry them out. Political rights are least threatened by the judicial branch. On occasion, the courts may unfairly treat an individual, but they, in general, can never threaten liberty. The Constitution imposes certain restrictions on the Congress designed to protect individual liberties, but unless the courts are independent and have the power to declare laws in violation of the Constitution null and void, those protections amount to nothing. The power of the Supreme Court to declare laws unconstitutional leads some people to assume that the judicial branch will be superior to the legislative branch. Hamilton examines this argument, starting with the fact that only the Constitution is fundamental law. To argue that the Constitution is not superior to the laws suggest that the representatives of the people are superior to the people and that the Constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of their representatives. This is not a matter of which branch is superior: it is simply to acknowledge that the people are superior to both. It is futile to argue that the court's decisions, in some instances, might interfere with the will of the legislature. People argue that it is the function of Congress, not the courts, to pass laws and formulate policy. This is true, but to interpret the laws and judge their constitutionality are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of the Congress. The independence of the courts is also necessary to protect the rights of individuals against the destructive actions of factions. Certain designing men may influence the legislature to formulate policies and pass laws that violate the Constitution or individual rights. The fact that the people have the right to change or abolish their government if it becomes inconsistent with their happiness is not sufficient protection; in the first place, stability requires that such changes be orderly and constitutional. A government at the mercy of groups continually plotting its downfall would be in a deplorable situation. The only way citizens can feel their rights are secure is to know that the judicial branch protects them against the people, both in and outside government, who work against their interests. Hamilton cites one other important reason for judges to have life tenure. In a free government there are bound to be many laws, some of them complex and contradictory. It takes many years to fully understand the meaning of these laws and a short term of office would discourage able and honest men from seeking an appointment to the courts; they would be reluctant to give up lucrative law practices to accept a temporary judicial appointment. Life tenure, modified by good behavior, is a superb device for assuring judicial independence and protection of individual rights. With a view toward creating a judiciary that would constitute a balance against Congress, the Convention provided for the independence of the courts from Congress. Hamilton opposes vesting supreme judicial power in a branch of the legislative body because this would verge upon a violation of that "excellent rule," the separation of powers. Besides, due to the propensity of legislative bodies to party division, there is "reason to fear that the pestilent breath of faction may poison the fountains of justice." Hamilton, therefore, praises the Constitution for establishing courts that are separated from Congress. He is pleased to note that to this organizational independence there is added a financial one. Another factor contributing to the independence of the judiciary is the judges' right to hold office during good behavior. It is in connection with his advocacy of that "excellent barrier to the encroachments and oppressions of that reprehensive body," that "citadel of the public justice," that Hamilton pronounces judicial review as being part of the Constitution. Judicial review is another barrier against too much democracy. Exercised by state courts before the Federal Convention met, and taken for granted by the majority of the members of the Convention, as well as by the ratifying conventions in the states, judicial review is expounded by Hamilton as a doctrine reaching a climax and a conclusion in this Federalist paper. Starting out from the premise that "a constitution is, in fact, and must be regarded by the judged, as a fundamental law," Hamilton considers judicial review as a means of preserving that constitution and, thereby, free government. To be more concrete, when Hamilton considers the judiciary both as a barrier to the encroachments and oppressions of the representative body and as the citadel of public justice, i.e., the citadel for the protection of the individual's life, liberty, and property, he states that judicial review means a curb on the legislature's encroachments upon individual rights. Parallel to every denial of legislative power in essay seventy-eight goes an assertion of vested rights. Note that the Supreme Court did not ultimately grant itself the explicit power of judicial review until the case Marbury v. Madison in 1803. Although he considers a power-concentration in the legislature as despotism, Hamilton does not perceive a strong judiciary as a threat to free government. He admits that individual oppression may now and then proceed from the courts, but he is emphatic in adding that the general liberty of the people can never be endangered from that quarter. When the judge unites integrity with knowledge, power is in good hands. As the "bulwarks of a limited Constitution against legislative encroachments," they will use that power for the protection of the individual's rights rather than for infringements upon those rights. Through judicial review vested rights are protected not only from the legislature, they are also protected from the executive. An executive act that is sanctioned by the courts and - since it is the duty of the judges to declare void legislative acts contrary to the Constitution - that is thus in conformity with the will of the people as laid down in the Constitution, cannot be an act of oppression. The Federalist Papers Questions and AnswersThe Question and Answer section for The Federalist Papers is a great resource to ask questions, find answers, and discuss the novel. how are conflictstoo often decided in unstable government? Whose rights are denied when this happens? In a typical non-democratic government with political instability, the conflicts are often decided by the person highest in power, who abuse powers or who want to seize power. Rival parties fight each other to the detriment of the country. How Madison viewed human nature? Madison saw depravity in human nature, but he saw virtue as well. His view of human nature may have owed more to John Locke than to John Calvin. In any case, as Saul K. Padover asserted more than a half-century ago, Madison often appeared to steer... How arguable and provable is the author of cato 4 claim What specific claim are you referring to? Study Guide for The Federalist PapersThe Federalist Papers study guide contains a biography of Alexander Hamilton, John Jay and James Madison, literature essays, a complete e-text, quiz questions, major themes, characters, and a full summary and analysis. - About The Federalist Papers
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Essays for The Federalist PapersThe Federalist Papers essays are academic essays for citation. These papers were written primarily by students and provide critical analysis of The Federalist Papers by Alexander Hamilton, John Jay and James Madison. - A Close Reading of James Madison's The Federalist No. 51 and its Relevancy Within the Sphere of Modern Political Thought
- Lock, Hobbes, and the Federalist Papers
- Comparison of Federalist Paper 78 and Brutus XI
- The Paradox of the Republic: A Close Reading of Federalist 10
- Manipulation of Individual Citizen Motivations in the Federalist Papers
Lesson Plan for The Federalist Papers- About the Author
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E-Text of The Federalist PapersThe Federalist Papers e-text contains the full text of The Federalist Papers by Alexander Hamilton, John Jay and James Madison. - FEDERALIST. Nos. 1-5
- FEDERALIST. Nos. 6-10
- FEDERALIST. Nos. 11-15
- FEDERALIST. Nos. 16-20
- FEDERALIST. Nos. 21-25
Wikipedia Entries for The Federalist PapersAP US Government Federalist No. 78Federalist No. 78 is an essay written by Alexander Hamilton, one of the Founding Fathers of the United States, which argues for the necessity and importance of an independent judicial branch in the U.S. Constitution. Related termsFederalist Papers : A collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay promoting the ratification of the United States Constitution. Separation of Powers : The division of governmental responsibilities into distinct branches (legislative, executive, judicial) to limit any one branch from exercising the core functions of another. Checks and Balances : A system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power. " Federalist No. 78 " appears in:Study guides ( 1 ). - AP US Government - 2.8 The Judicial Branch
Subjects ( 1 )- Fundamentals of American Government
Practice Questions ( 1 )- What is the purpose of Federalist No. 78?
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Federalist Papers: Primary Documents in American HistoryFull text of the federalist papers. - Introduction
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History, Humanities & Social Sciences : Ask a LibrarianHave a question? Need assistance? Use our online form to ask a librarian for help. Chat with a librarian , Monday through Friday, 12-4pm Eastern Time (except Federal Holidays). The Federalist , commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time. The Federalist Papers were written and published to urge New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. In lobbying for adoption of the Constitution over the existing Articles of Confederation, the essays explain particular provisions of the Constitution in detail. For this reason, and because Hamilton and Madison were each members of the Constitutional Convention, the Federalist Papers are often used today to help interpret the intentions of those drafting the Constitution. The Federalist Papers were published primarily in two New York state newspapers: The New York Packet and The Independent Journal . They were reprinted in other newspapers in New York state and in several cities in other states. A bound edition, with revisions and corrections by Hamilton, was published in 1788 by printers J. and A. McLean. An edition published by printer Jacob Gideon in 1818, with revisions and corrections by Madison, was the first to identify each essay by its author's name. Because of its publishing history, the assignment of authorship, numbering, and exact wording may vary with different editions of The Federalist . The electronic text of The Federalist used here was compiled for Project Gutenberg by scholars who drew on many available versions of the papers. One printed edition of the text is The Federalist , edited by Jacob E. Cooke (Middletown, Conn., Wesleyan University Press, 1961). Cooke's introduction provides background information on the printing history of The Federalist; the information provided above comes in part from his work. This web-friendly presentation of the original text of the Federalist Papers (also known as The Federalist) was obtained from the e-text archives of Project Gutenberg. Any irregularities with regard to grammar, syntax, spelling, or punctuation are as they exist in the original e-text archives. Table of Contents No. | Title | Author | Publication | Date | 1. | | Hamilton | For the | -- | 2. | | Jay | For the | -- | 3. | | Jay | For the | -- | 4. | | Jay | For the | -- | 5. | | Jay | For the | -- | 6. | | Hamilton | For the | -- | 7. | | Hamilton | For the | -- | 8. | | Hamilton | From the | Tuesday, November 20, 1787 | 9. | | Hamilton | For the | -- | 10. | | Madison | Frm the | Friday, November 27, 1787 | 11. | | Hamilton | For the | -- | 12. | | Hamilton | From the | Tuesday, November 27, 1787 | 13. | | Hamilton | For the | -- | 14. | | Madison | From the | Friday, November 30, 1787 | 15. | | Hamilton | For the | -- | 16. | | Hamilton | From the | Tuesday, December 4, 1787 | 17. | | Hamilton | For the | -- | 18. | | Hamilton and Madison | For the | -- | 19. | | Hamilton and Madison | For the | -- | 20. | | Hamilton and Madison | From the | Tuesday, December 11, 1787 | 21. | | Hamilton | For the | -- | 22. | | Hamilton | From the | Friday, December 14, 1787 | 23. | | Hamilton | From the | Tuesday, December 17, 1787 | 24. | | Hamilton | For the | -- | 25. | | Hamilton | From the | Friday, December 21, 1787 | 26. | | Hamilton | For the | -- | 27. | | Hamilton | From the | Tuesday, December 25, 1787 | 28. | | Hamilton | For the | -- | 29. | | Hamilton | From the | Thursday, January 10, 1788 | 30. | | Hamilton | From the | Friday, December 28, 1787 | 31. | | Hamilton | From the | Tuesday, January 1, 1788 | 32. | | Hamilton | From the | Thursday, January 3, 1788 | 33. | | Hamilton | From the | Thursday, January 3, 1788 | 34. | | Hamilton | From the | Friday, January 4, 1788 | 35. | | Hamilton | For the | -- | 36. | | Hamilton | From the | Tuesday, January 8, 1788 | 37. | | Madison | From the | Friday, January 11, 1788 | 38. | | Madison | From the | Tuesday, January 15, 1788 | 39. | | Madison | For the | -- | 40. | | Madison | From the | Friday, January 18, 1788 | 41. | | Madison | For the | -- | 42. | | Madison | From the | Tuesday, January 22, 1788 | 43. | | Madison | For the | -- | 44. | | Madison | From the | Friday, January 25, 1788 | 45. | | Madison | For the | -- | 46. | | Madison | From the | Tuesday, January 29, 1788 | 47. | | Madison | From the | Friday, February 1, 1788 | 48. | | Madison | From the | Friday, February 1, 1788 | 49. | | Hamilton or Madison | From the | Tuesday, February 5, 1788 | 50. | | Hamilton or Madison | From the | Tuesday, February 5, 1788 | 51. | | Hamilton or Madison | From the | Friday, February 8, 1788 | 52. | | Hamilton or Madison | From the | Friday, February 8, 1788 | 53. | | Hamilton or Madison | From the | Tuesday, February 12, 1788 | 54. | | Hamilton or Madison | From the | Tuesday, February 12, 1788 | 55. | | Hamilton or Madison | From the | Friday, February 15, 1788 | 56. | | Hamilton or Madison | From the | Tuesday, February 19, 1788 | 57. | | Hamilton or Madison | From the | Tuesday, February 19, 1788 | 58. | | Madison | -- | -- | 59. | | Hamilton | From the | Friday, February 22, 1788 | 60. | | Hamilton | From the | Tuesday, February 26, 1788 | 61. | | Hamilton | From the | Tuesday, February 26, 1788 | 62. | | Hamilton or Madison | For the | -- | 63. | | Hamilton or Madison | For the | -- | 64. | | Jay | From the | Friday, March 7, 1788 | 65. | | Hamilton | From the | Friday, March 7, 1788 | 66. | | Hamilton | From the | Tuesday, March 11, 1788 | 67. | | Hamilton | From the | Tuesday, March 11, 1788 | 68. | | Hamilton | From the | Friday, March 14, 1788 | 69. | | Hamilton | From the | Friday, March 14, 1788 | 70. | | Hamilton | From the | Friday, March 14, 1788 | 71. | | Hamilton | From the | Tuesday, March 18, 1788 | 72. | | Hamilton | From the | Friday, March 21, 1788 | 73. | | Hamilton | From the | Friday, March 21, 1788 | 74. | | Hamilton | From the | Tuesday, March 25, 1788 | 75. | | Hamilton | For the | -- | 76. | | Hamilton | From the | Tuesday, April 1, 1788 | 77. | | Hamilton | From the | Friday, April 4, 1788 | 78. | | Hamilton | From McLEAN's Edition, New York | -- | 79. | | Hamilton | From McLEAN's Edition, New York | -- | 80. | | Hamilton | From McLEAN's Edition, New York | -- | 81. | | Hamilton | From McLEAN's Edition | -- | 82. | | Hamilton | From McLEAN's Edition | -- | 83. | | Hamilton | From McLEAN's Edition | -- | 84. | | Hamilton | From McLEAN's Edition | -- | 85. | | Hamilton | From McLEAN's Edition | -- | - << Previous: Introduction
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3 minute read Federalist PapersFederalist, no. 78, and the power of the judiciary. "We proceed now to an examination of thejudiciary department of the proposed government." So begins Federalist, no. 78, the first of six essays by ALEXANDER HAMILTON on the role of the judiciary in the government established by the U.S. Constitution. Hamilton made two principal points in the essay. First, he argued for the independence of the judiciary from the other two branches of government, the executive and the legislative. In presenting a case for the judiciary, he reached his second major conclusion: that the judiciary must be empowered to strike down laws passed by Congress that it deems "contrary to the manifest tenor of the Constitution." In presenting his argument for the independence of the judiciary, Hamilton claimed that it was by far the weakest of the three branches. It did not, he said, have the "sword" of the executive, who is commander in chief of the nation's armed forces, nor the "purse" of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, "neither FORCE nor WILL but merely judgment." As a result of this weakness, the U.S. Constitution protects the judiciary from the other two branches by what Hamilton called "permanency in office." Article III, Section 1, of the Constitution declares, "Judges … shall hold their Offices during good Behaviour." By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures that judges will not be changed according to the interests or whims of another branch of government. According to Hamilton, permanent tenure also recognizes the complexity of the law in a free society. Few people, he believed, will have the knowledge and the integrity to judge the law, and those deemed adequate to the office must be retained rather than replaced. The judiciary must also be independent, according to Hamilton, so that it may fulfill its main purpose in a constitutional government: the protection of the "particular rights or privileges" of the people as set forth by the Constitution. Here, Hamilton made his second major point. To protect those rights, he proclaimed, the judiciary must be given the power of JUDICIAL REVIEW to declare as null and void laws that it deems unconstitutional. Critics of the Constitution claimed that judicial review gave the judiciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no. 78, by arguing that both branches are inferior to the power of the people and that the judiciary's role is to ensure that the legislature remains a "servant" of the Constitution and the people who created it, not a "master": 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. 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. Although judicial review is not explicitly mentioned in the Constitution, the U.S. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the 1803 case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated "judicial activism" by striking down legislation, Hamilton was correct in foreseeing that the U.S. Supreme Court and lower courts would protect the rights defined by the people in their Constitution. CROSS-REFERENCESMarbury v. Madison ; Marshall, John . Additional topics- Federalist Papers - Further Readings
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Law Library - American Law and Legal Information Free Legal Encyclopedia: Ex proprio motu (ex mero motu) to File Federalist Papers - Federalist, No. 78, And The Power Of The Judiciary, Further Readings Primary Source: Federalist No. 78 Excerpts AnnotatedFederalist No. 78 by Alexander HamiltonTo 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. Annotations1 Opponents of the Constitution have objected to the term of office for judges. 2 A federal judge remains in office as long as he does the job correctly (perhaps even for lifetime tenure.) 3 Judges 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. 4 The judiciary is the branch that has the least opportunity to violate constitutional rights. 5 The judiciary has no control over the government’s budget or military. It must rely on the executive branch to carry out its rulings. 6 Though 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. 7 The complete independence of the courts is an important protection to the people, especially in a constitution that imposes limits on the legislature. 8 The 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. 9 The 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. 10 No law that is inconsistent with the Constitution and its principles can be legally binding. 11 Through 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. 12 The 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. 13 Since 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. 14 Judges 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. 15 The independence of the judiciary is especially important when people make unjust decisions that oppress the rights of those who hold minority opinions. 16 The 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. 17 Judges must be independent in order to hold the line against unconstitutional laws that result from popular pressure on legislators. 18 An 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. 19 All 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. 20 Judges 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. 21 To 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. 22 Individuals 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. 23 There 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.] - Teacher Opportunities
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Bell Ringer: Federalist 78 and Marbury v. MadisonFederalist 78 and marbury v. madison. Supreme Court Justice Stephen Breyer explained the power of judicial review and how Hamilton's Federalist 78 contributed to the precedent set in Marbury v. Madison. DescriptionBell ringer assignment. - According to Federalist 78, why should one branch of government have the authority to ensure that the other branches act within the limits of the Constitution?
- Why does Hamilton in Federalist 78 argue that the judiciary should have the authority to determine the limits of the Constitution?
- How did Thomas Jefferson’s views on the separation of powers contrast with Hamilton’s?
- Describe the events that led to the Marbury v. Madison Supreme Court case.
- What dilemma did the Supreme Court face in Marbury v. Madison?
- How did Chief Justice John Marshall and the Supreme Court rule in this case?
- In what ways did the precedent in Marbury v. Madison increase the role of the Supreme Court?
- How did the ideas from Federalist 78 contribute to the precedent set in Marbury v. Madison?
Additional Resources- Lesson Plan: Marbury v Madison
- Bell Ringer: Judicial Review and Federalist 78
- Lesson Plan: Federalist 78
Participants- Alexander Hamilton
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- Thomas Jefferson
If you're seeing this message, it means we're having trouble loading external resources on our website. If you're behind a web filter, please make sure that the domains *.kastatic.org and *.kasandbox.org are unblocked. To log in and use all the features of Khan Academy, please enable JavaScript in your browser. Constitution 101Course: constitution 101 > unit 6. - Article III The Judicial Branch | Constitution 101
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Primary Source: Alexander Hamilton, Federalist No. 78 (1788)- What was John Marshall's constitutional vision?
- Primary Source: Marbury v. Madison (1803)
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Misquoting Federalist 78One of my long-standing pet peeves is the way advocates of “judicial restraint” often mis-quote Alexander Hamilton’s brilliant Federalist 78. They’re particularly fond of the Federalist 78 phrase “if they [the courts] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body,” or the phrase “neither FORCE nor WILL, but merely judgment.” Sometimes you see this emblazoned on pamphlets or banners by those who argue in favor of “restraint” and against “activism.” But read the rest of Federalist 78, and you see that the entire article is not about judicial restraint or the “limited role of judges in our democratic process” at all. Hamilton’s thesis is the need for a vigorous and engaged judiciary to protect the Constitution against inroads by the legislature . It’s a devoutly counter-majoritarian argument, and Hamilton’s contrast of will with judgment is intended to bolster his argument that courts should be more independent of the democratic process. For Hamilton, the Constitution, and not legislation, is the true will of the people. The people form a political compact and then delegate the day-to-day operation of the government to elected “deputies.” The Constitution is like an employment contract, therefore, which limits (in both explicit and implicit ways) what the employee may do. If the employees exceed those limits—if the legislature goes beyond its constitutional authority—then they are no longer acting within their legitimate authority and their acts lack legitimacy. Just as “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void,” so, too, “[n]o legislative act…contrary to the Constitution, can be valid.” To say otherwise—to say that the temporary will of the legislature as articulated in a piece of legislation should be preferred over the will of the people as articulated in the Constitution “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.” It’s the role of judges, Hamilton says, to enforce the constitutional limits on legislative authority: “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.” To perform this role, of course, the judges have to be independent of the people. Not entirely independent, certainly—that would also be dangerous, as Madison says in Federalist 51, “because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.” But they do need a degree of independence if they are going to perform their necessary function of limiting the temporary majority and ensuring that they obey the Constitution. This is where Hamilton’s references to “will” and “judgment” come in. Will is a basic, powerful force—a force of strength and exertion. One might say, with some inaccuracy, that it is the essential characteristic of the executive. It is a dangerous force; a necessary one, but one which must be kept on a tight leash. Will is the power of the sword; it cannot be trusted with independence because it might turn on the people. Judgment, by contrast, is the power of the book; it is the characteristic element of the judicial branch. The judge exercises detached reason and analysis. Judgment must not be kept on a tight leash, because judgment should not be swayed by passion, influence, self-interest, threats, or other distracting emotional influences. In this picture, law has no concern for political consequences and has little interest in deference; it simply pronounces its best determination of reason. In other words, in Hamilton’s view, it is precisely because courts exercise judgment instead of will that they should be vigorous and independent—that they should not be “restrained” by considerations of majority rule. Hamilton contrasts “will” and “judgment” in order to emphasize the importance of an active judiciary—to help submit the boisterous passions of democracy to the discipline of the Constitution’s supreme law, not to foster mere majority rule. Cross-posted at The Cockle Bur Related CasesNo Related Cases Related ArticlesNo Related Article | | | | Century 1400 - 1499 | Century 1500 - 1599 | Century 1600 - 1699 | Century 1700 - 1799 | Century 1800 - 1899 | Century 1900 - 1999 | Century 2000 - | - Avalon Statement of Purpose
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1785 Accesses 12 Citations WE PROCEED now to an examination of the judiciary department of the proposed government. This is a preview of subscription content, log in via an institution to check access. Access this chapterSubscribe and save. - Get 10 units per month
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Tax calculation will be finalised at checkout Purchases are for personal use only Institutional subscriptions Unable to display preview. Download preview PDF. Similar content being viewed by othersU.S. GovernmentUnited States of AmericaJudicial Federalism and Constitutional Review in the Swiss JudiciaryYou can also search for this author in PubMed Google Scholar Copyright information© 2009 Michael A. Genovese About this chapterHamilton, A., Madison, J., Jay, J. (2009). Federalist No. 78. In: The Federalist Papers. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230102019_47 Download citationDOI : https://doi.org/10.1057/9780230102019_47 Publisher Name : Palgrave Macmillan, New York Print ISBN : 978-1-349-38365-8 Online ISBN : 978-0-230-10201-9 eBook Packages : Palgrave Political & Intern. Studies Collection Political Science and International Studies (R0) Share this chapterAnyone you share the following link with will be able to read this content: Sorry, a shareable link is not currently available for this article. Provided by the Springer Nature SharedIt content-sharing initiative Policies and ethics - Find a journal
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On May 28, 1788, Alexander Hamilton published Federalist 78—titled "The Judicial Department.". In this famous Federalist Paper essay, Hamilton offered, perhaps, the most powerful defense of judicial review in the American constitutional canon. On the one hand, Hamilton defined the judicial branch as the "least dangerous" branch of the ...
Federalist No. 79. Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of The Federalist Papers. Like all of The Federalist papers, it was published under the pseudonym Publius . Titled " The Judiciary Department ", Federalist No. 78 was published May 28, 1788, and first appeared in a newspaper on June 14 of the same year.
Summary and Analysis Section XII: Judiciary: Federalist No. 78 (Hamilton) Summary. This section of six chapters deals with the proposed structure of federal courts, their powers and jurisdiction, the method of appointing judges, and related matters. A first important consideration was the manner of appointing federal judges, and the length of ...
The Federalist No. 78 1. [New York, May 28, 1788] To the People of the State of New-York. WE proceed now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. 2 It is the less necessary to ...
INTRODUCTION This is the first of five essays by Publius (in this case, Hamilton) on the judiciary. The heart of this essay covers the case for the duration of judges in office. Publius points out that their lifetime appointments are guaranteed only "during good behavior." He calls the insistence on this standard "one of the Read more...
This is the first of five essays by Publius on the judiciary. The heart of this essay covers the case for the duration of judges in office.
Publius: The Federalist 78 New York, 28 May 1788 This essay, written by Alexander Hamilton, first appeared in Volume II of the book edition of The Federalist. It was reprinted as number 77 in the New York Independent Journal, 14 June, and as number 78 in the New York Packet, 17, 20 June. It has been transcribed from pages 290-99 of the book ...
Federalist No. 78. Excerpt: "WE PROCEED now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety ...
Federalist Number (No.) 78 (1788) is an essay by British-American politician Alexander Hamilton arguing for the ratification of the United States Constitution. The full title of the essay is "The Judiciary Department." It was written as part of a series of essays collected and published in 1788 as The Federalist and later known as The ...
The Federalist Papers essays are academic essays for citation. These papers were written primarily by students and provide critical analysis of The Federalist Papers by Alexander Hamilton, John Jay and James Madison.
Federalist No. 78 is an essay written by Alexander Hamilton, one of the Founding Fathers of the United States, which argues for the necessity and importance of an independent judicial branch in the U.S. Constitution.
The Federalist Papers were a series of essays written by Alexander Hamilton, James Madison, and John Jay under the pen name "Publius." This guide compiles Library of Congress digital materials, external websites, and a print bibliography.
Federalist, No. 78, And The Power Of The Judiciary "We proceed now to an examination of thejudiciary department of the proposed government." So begins Federalist, no. 78, the first of six essays by ALEXANDER HAMILTON on the role of the judiciary in the government established by the U.S. Constitution.
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 ...
In Federalist 78, Alexander Hamilton (writing as Publius) outlined the justification for judicial life terms and for judicial review. This lesson provides students with an opportunity to analyze ...
The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The collection was commonly known as The Federalist until the name The Federalist Papers emerged in the twentieth century.
Description Supreme Court Justice Stephen Breyer explained the power of judicial review and how Hamilton's Federalist 78 contributed to the precedent set in Marbury v. Madison.
On May 28, 1788, Alexander Hamilton published Federalist No. 78—titled "The Judicial Department.". In this famous Federalist Papers essay, Hamilton offered, perhaps, the most powerful defense of judicial review in the American constitutional canon. On the one hand, Hamilton defined the judicial branch as the "weakest" and "least ...
But read the rest of Federalist 78, and you see that the entire article is not about judicial restraint or the "limited role of judges in our democratic process" at all. Hamilton's thesis is the need for a vigorous and engaged judiciary to protect the Constitution against inroads by the legislature. It's a devoutly counter-majoritarian argument, and Hamilton's contrast of will with ...
The Federalist Papers : No. 78. From McLEAN'S Edition, New York. To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.
Abstract WE PROCEED now to an examination of the judiciary department of the proposed government. Download to read the full chapter text Chapter PDF Similar content being viewed by others Keywords Legislative Body Legislative Power Judicial Discretion Judicial Office Federalist Paper These keywords were added by machine and not by the authors. This process is experimental and the keywords may ...