According to Alexander Hamilton in Federalist No 78 the Power of Judicial Review

Most-cited Federalist Paper; by Alexander Hamilton and about the Supreme Court

Alexander Hamilton, writer of Federalist No. 78

Federalist No. 78 is an essay past Alexander Hamilton, the seventy-8th 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 paper on June fourteen of the same year. Information technology was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the offset of six essays by Hamilton on this issue. In detail, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would exist appointed for life.

The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by U.S. jurists, but are not law. Of all the essays, No. 78 is the well-nigh cited past the justices of the United States Supreme Court.^[1]

Federalist No. 78 quotes Montesquieu: "Of the iii powers [...], the judiciary is next to naught." There was lilliputian business organization that the judiciary might exist able to overpower the political branches; since Congress controlled the menses of money and the President the military, courts did not have about the aforementioned power from a constitutional design standpoint. The Judiciary would depend on the political branches to uphold its judgments. Legal academics often argue over Hamilton's clarification of the judiciary every bit the "least unsafe" branch. Hamilton too explains how federal judges should retain life terms as long as those judges showroom good behavior. ^[2]

Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the job of determining whether acts of Congress are ramble and what must exist done if the authorities is faced with the things that are washed on the contrary of the Constitution.

Controls on judicial acquit [edit]

The fundamental debate that Hamilton and his Anti-Federalist rival "Brutus" addressed was over the degree of independence to be granted to federal judges, and the level of accountability to be imposed upon them. In England, a judge can be removed from office "upon the address of both Houses of Parliament." ^[3] Moreover, as the Act of Settlement 1701 was a mere law, the judicial independence it provided could be abrogated wholesale by an act of Parliament.^[iv] Similarly, English judges were beholden to Parliament, in the sense that their judgments can be overturned by that body. Brutus took the position that the Constitution should adopt the English organisation in toto (with small-scale modifications); Hamilton defended the present system.

Several scholars believe that the case of Rutgers v. Waddington "was a template for the interpretive approach he[Hamilton] adopted in Federalist 78."^[ane] ^[2] ^[three]

Skillful behavior tenure [edit]

In England, although most agents of the Crown served "at the pleasure of the King," public officials were often granted a life tenure in their offices.^[5] Lesser lords were given the authority to bequeath life tenure, which created an constructive multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security.^[half-dozen] Without some kind of constructive control upon their behave, this would engender intolerable injustice, as the King'southward ministers would be gratuitous to 'vent their spleen' upon caught subjects with impunity.

The English language solution to this problem was to condition the belongings of office upon skilful beliefs, every bit enforced past the people through the writ of scire facias. Although it was technically a writ of the sovereign, this power concerned merely the interests of his subjects; every bit the King exercised information technology but as parens patriae, he was bound by law to let the use of it to any subject area interested. Sir William Blackstone explains in his landmark treatise on the common law, Commentaries on the Laws of England:

WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant exist injurious to a subject, the king is bound of right to permit him (upon his petition) to utilise his royal name for repealing the patent in a scire facias.^[7]

Violations of good beliefs tenure at common law included "abuse of office, nonuse of office, and refusal to exercise an function,"^[8] and the "oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the color of their function, [which could be prosecuted] by information in the court of male monarch's bench."^[9] As the remedy of the writ of scire facias was available in every one of the colonies,^[x] its efficacy every bit a deterrent against corruption of judicial role was causeless rather than debated.

Legislative review of judicial decisions [edit]

The primary indicate of contention between Hamilton and Brutus was in the concern that judges would substitute their will for the manifestly text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.^[11] Hamilton conceded that no federal judge had the legal authority to impose his or her will on the people in defiance of the Constitution:

At that place is no position that depends on clearer principles, than that every deed of a delegated authority, contrary to the tenor of the commission under which information technology is exercised, is void. No legislative act, therefore, opposite 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; that men acting by virtue of powers, may practice not simply what their powers practise not qualify, but what they preclude. ... To avert arbitrary discretion in the courts, information technology is indispensable that they should be leap downward by strict rules and precedents, which serve to define and indicate out their duty in every particular case that comes before them.

Brutus pointed out that the Constitution did not provide an effective machinery for controlling judicial caprice:

At that place is no ability above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation volition generally shortly feel contained of heaven itself. ^[12]

Hamilton viewed this credible flaw in constitutional blueprint every bit more of a virtue than a vice:

But it is non with a view to infractions of the Constitution but, that the independence of the judges may be an essential safeguard against the furnishings of occasional ill senses of humor in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here likewise the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the functioning of such laws. It not just serves to moderate the immediate mischiefs of those which may take 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, past the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be enlightened of.

It appears that Hamilton is relying on the efficacy of the writ of scire facias, coupled with a presumption that other branches of regime volition ignore unconstitutional judicial decisions, equally a command upon judicial misconduct.^{[ citation needed ]}

Judicial review [edit]

Federalist No. 78 describes the procedure of judicial review, in which the federal courts review statutes to decide whether they are consequent with the Constitution and its statutes. Federalist No. 78 indicates that under the Constitution, the legislature is not the judge of the constitutionality of its ain actions. Rather, it is the responsibility of the federal courts to protect the people past restraining the legislature from acting inconsistently with the Constitution:

If it is said that the legislative body is themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is non to exist nerveless from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their volition to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate trunk between the people and the legislature, in club, amongst other things, to continue the latter within the limits assigned to their authority.

Federalist No. 78 views the judicial branch equally inherently weak because of its disability to control either the money or the military of the country. The only power of the judicial co-operative is the power of judgment:

The Executive not only dispenses the honors but holds the sword of the customs. The legislature not only commands the handbag just 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 guild; and can have no active resolution whatever. It may truly be said to accept neither Strength nor Will, but just judgment; and must ultimately depend upon the aid of the executive arm fifty-fifty for the efficacy of its judgments.

Because of the courts' weakness, Federalist No. 78 sees the possibility of corruption using the judicial review every bit a non-issue. The people volition never be in danger if the structure of the government written up in the Constitution remains. It too asserts that judgment needs to be removed from the groups that make the legislation and rule:

Information technology as proves, that though individual oppression may now and then proceed from the courts of justice, the full general liberty of the people tin can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I concur, that "there is no liberty if the ability of judging is not separated from the legislative and executive powers.

Federalist No. 78 views Supreme Court Justices as an embodiment of the Constitution, the final grouping to protect the foundation laws gear up in the Constitution. This coincides with the view above that the judicial branch is the branch of judgment:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must exist regarded by the judges, as a cardinal law. It, therefore, belongs to them to define its meaning, as well every bit the pregnant of any detail act proceeding from the legislative trunk.

According to Federalist No. 78, the federal courts have a duty to interpret and use the Constitution, and to disregard whatever statute that is inconsistent with the Constitution:

If in that location should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of grade, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .

Federalist No. 78 argues that the power of judicial review should be used by the judicial branch to protect the liberties guaranteed to the people by the Constitution and to provide a check on the power of the legislature:

[W]here 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 past the fundamental laws, rather than by those which are not key. . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to attach to the latter and disregard the sometime.

Federalist No. 78, therefore, indicates that the federal judiciary has the power to determine whether statutes are ramble and to find them invalid if in disharmonize with the Constitution. This principle of judicial review was affirmed past the Supreme Court in the case of Marbury v. Madison (1803).

References [edit]

^ The Genius of Hamilton and the Birth of the Modernistic Theory of the Judiciary, by William M. Treanor, p. 30
^ The Forging of the Spousal relationship, 1781-1789, Richard B. Morris, p. 128
^ Thomas Jefferson and Alexander Hamilton, p. 21

^ "Fifteen Curious Facts almost The Federalist Papers" by Dan T. Coenen from Academy of Georgia School of Law (Publication date: 4-1-2007)
^ Bickel, Alexander One thousand. "The Least Dangerous Co-operative." Yale University Printing; 2 Edition, 1986.
^ Act of Settlement, Function III, para. 8 (G.B. 1701).
^ See, Robertson 5. Baldwin, 165 U.S. 275, 297 (1897) (Harlan, J., dissenting).
^ See e.g., four Coke, Inst. of the Laws of England 117 (Baron of the Exchequer).
^ See e.k., Harcourt v. Fob, 1 Show. 426 (K.B. 1692) (re: clerk of the peace).
^ 3 Blackstone, Commentaries 260-61; see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).
^ Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (quoting Coke'southward Institutes).
^ 4 Blackstone, Commentaries at 140-41.
^ Prakash at 102-114.
^ John Paul Stevens [Acquaintance Justice, United States Supreme Courtroom], "Two Questions Nearly Justice," 2003 Ill. L. Rev. 821
^ Anti-Federalist 78-79 ("Brutus").[13]