Federalist No. 78: The Judiciary Department

By Alexander Hamilton

To the People of the State of New York:

We now examine the judiciary department of the proposed government.

The federal judicature's necessity has been clearly established. Key questions concern: (1) appointing judges, (2) their tenure, and (3) partitioning judicial authority among courts.

On Appointing Judges

The appointment process follows general Union officer procedures discussed previously.

On Judicial Tenure

Judges appointed by the United States hold office "during good behavior," conforming to approved state constitutions. This standard represents "one of the most valuable of the modern improvements in the practice of government." It protects against monarchical despotism and legislative encroachment, securing impartial law administration.

The Judiciary's Limited Power

The judiciary is the weakest branch. The executive commands "the sword of the community," while the legislature controls "the purse" and prescribes citizen duties and rights. The judiciary "has no influence over either the sword or the purse" and possesses "neither force nor will, but merely judgment."

This weakness proves crucial: the judiciary cannot endanger general liberty when kept distinct from other branches. Yet independence remains essential—the judiciary must defend itself against encroachments while courts remain "truly distinct from both the legislature and the Executive."

Judicial Review and Limited Constitutions

In a limited constitution containing specified exceptions to legislative authority, independence is "peculiarly essential." Courts must declare acts "contrary to the manifest tenor of the Constitution void."

Some questioned whether courts declaring laws void implies judicial superiority. This misunderstands the principle. Every delegated authority act contradicting its commission is void. No legislative act contrary to the Constitution can be valid—otherwise "the deputy is greater than his principal; that the servant is above his master."

The legislature cannot be sole judge of its own powers. Rather, courts serve as "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." Interpreting laws belongs to courts; the Constitution is "a fundamental law." When statutes conflict with the Constitution, judges should prefer "the intention of the people to the intention of their agents."

This does not presume judicial superiority—only that "the power of the people is superior to both" branches. Courts should "regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

Practical Application

When two statutes conflict, courts determine their meaning and operation. Between contradictory acts of equal authority, the later prevails. But when superior (constitutional) and subordinate (statutory) authority conflict, the prior constitutional act should be preferred. Courts must "adhere to the latter and disregard the former."

Critics contend courts might substitute personal pleasure for constitutional intention. This objection applies equally to any statutory interpretation—it questions whether judges should exist distinct from the legislature.

Permanency and Independence

Permanent tenure strengthens judicial independence essential to protecting constitutional limits against legislative encroachment. Temporary appointments would encourage "improper complaisance" to appointing powers, whether executive, legislature, people, or popular delegates.

Additionally, judging requires extensive legal knowledge. Few possess both requisite skill and integrity. Temporary tenure would discourage qualified practitioners from accepting benches, throwing "the administration of justice into hands less able, and less well qualified."

Temporary commission judges cannot maintain "inflexible and uniform adherence to the rights of the Constitution, and of individuals." Permanency prevents manipulation by temporary popular passions while protecting minorities from unjust legislation.

The convention wisely established "good behavior" as judicial tenure. Without this feature, the plan would have been "inexcusably defective." Britain's experience demonstrates the institution's excellence.