Between the Lines: Hamilton, the Constitution, and the Courts
Unpacking Federalist 78's Argument for Judicial Review as the People's Safeguard Against Tyranny
Welcome to our final reading of Week Two, Federalist No. 78. In our last post, we discussed Federalist Nos. 10 and 51. Now, we turn toward the judiciary. Today’s reading from Hamilton will set us up to discuss Marbury v. Madison, an 1803 court case, next week.
The Judiciary
Alexander Hamilton, Federalist No. 78 “The Judiciary Department,” May 28, 1788
As he begins Federalist No. 78, Hamilton asserts that the need for the judiciary is widely known, so rather than offer an abstract argument in its favor, he chooses to focus on what constitutes this department of government. He intends to address three issues: First, by what mode will justices be appointed; second, what is their tenure; and third, what is the nature of the partition between the judiciary and the other departments, namely, the executive and legislative.
Hamilton dispenses quickly with the appointment process: the president nominates judges, who are then appointed with the advice and consent of the Senate. He reminds readers that judges are to hold office contingent on their good behavior. I like Hamilton’s gloss for good behavior: “steady, upright, and impartial.”
The judges are essential in a monarchy to protect against despotism, and the judiciary performs an analogous role in republics to protect the people and the minor party from oppression by the legislature. Equipped with insight that I’ve elsewhere attributed to the Federalists, it is nearly in the same breath that Hamilton observes the indispensable role of the judiciary that he notes of the departments of government, the judiciary is the weakest–not the weakest in an opportunistic sense to be manipulated, influenced, or exploited, but the weakest in so far as the judiciary requires its protection by some aid of the executive:
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.
Not that this particular point adds to the discussion, but because he’s featured in our essays before, the influential Montesquieu is credited by Hamilton as saying, "Of the three powers above mentioned, the judiciary is next to nothing."
The judiciary poses a risk to liberty, but only its possible union with the executive, legislative, or both that the judiciary may pose a threat to citizens. And yet, in constructing a “limited constitution,” by which Hamilton means a constitution that not only grants authority but also limits some of the authority granted therein, the judiciary is of utmost importance.
I certainly note the perceived asymmetry of power here: the judiciary has little recourse for its own protection, yet its role in protecting the Constitution against violation, its power, is paramount.
Hamilton continues to expand on these points. No law that violates the constitution can be valid, he argues. Doing so would place the people's representatives in the legislature above the people themselves. Relatedly, neither can the representatives elected by the people impose their will onto the people. It is here that Hamilton comments the courts are a sort of intermediary between the people and the legislature in service of the Constitution, that is, the people’s power codified. The Constitution is a “fundamental law” that is not derivative from any other authority than the people’s consent to be governed, and if a law is against the Constitution, it is against the people. Here is where I encourage us to pause to ensure we understand. Constitutional authority is simply our authority, the authority of the people, and so violations of the Constitution, while “illegal,” we may like to say, are, in fact, of more grave importance–and here I am editorializing, drawing from the Federalists. To act against the Constitution is to act against the people. The fact that President Trump and special government employee Elon Musk are dismantling agencies created by Congress and refusing to spend government funds following Congressional budget and appropriations, the President is not just “not playing nice with government”; he is violating the will of the people.
And what does Hamilton think the courts should be? Intermediaries between the people and the legislature so that the people’s power cannot be violated. This is how Federalist 78 sets the stage for next week’s discussion of the landmark Supreme Court Case Marbury v. Madison, which takes the abstract rule of judicial review and cements it in court precedent.
Before concluding, let me turn quickly to Hamilton’s thoughts on judicial tenure. He advocates for a permanent appointment and gives several reasons in support, but each distills down to judicial independence, which also connects to the partition between the branches.
Judges are to stand as a bulwark against unconstitutional laws, so the permanent appointment transcends the changing winds of different legislatures. Judges are to interpret laws by constitution, not popular will, and permanent appointment guards against ebbs and flows of popular sentiment. Yes, people can modify or abolish the Constitution, influencing how a law is interpreted. Hamilton notes that it is only by an act of the people and not the act of representatives that the Constitution may be modified, and permanent appointment guards the Constitution against modification by other means. Finally, Hamilton remarks on the complexity and nuance of legal interpretation and the study involved in constitutional interpretation, stating that permanent appointments allow precedent and expertise to flourish rather than temporary appointments that may not cultivate the same commitment.
Interestingly, Hamilton concludes Federalist 78 with a nod to Great Britain's excellent example of the judiciary.