FEDERALIST No. 78

The Judiciary Department
From McLEAN'S Edition, New York.
Wednesday, May 28, 1788

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.

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 of the institution in the
abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its
extent. To these points, therefore, our observations shall be confined.

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The
tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their
relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general,
and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

Second. 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.

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; which is conformable to the most approved of the State constitutions and among the rest, to that of
this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for
objection, which disorders their imaginations and judgments. 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.

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; 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.

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[1]; 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. For I
agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."[2] 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; that as all the effects of such a union must ensue from a dependence of
the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the
judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as
nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be
justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice
and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. 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.

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.

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; that men acting by virtue of powers, may do not only
what their powers do not authorize, but what they forbid.

If it be said that the legislative body are 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 not to be collected 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 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,
that which has the superior obligation and validity ought, of course, 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.

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.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It
not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and
neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and
fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law
conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to
one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last
in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but
from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by
themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it
reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have
the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature
and reason of the thing indicate the converse of that rule as proper to be followed. They 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.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they 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. The observation, if it prove any thing, would prove that there ought to be no judges distinct from
that body.

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.

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. Though I trust the friends of the proposed Constitution will never concur with its enemies,[3] in
questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the
established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this
principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their
constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation
of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when
they had proceeded wholly from the cabals of the representative body. 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. 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.

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors 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 also the firmness of the judicial magistracy
is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the
immediate mischiefs of those 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. This is a
circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. 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. 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.

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. 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. 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. The experience of Great Britain affords an illustrious comment on the excellence of the
institution.

PUBLIUS

    1. The celebrated Montesquieu, speaking of them, says: "Of the three
    powers above mentioned, the judiciary is next to nothing." -- Spirit of
    Laws. Vol. I, page 186.

    2. Idem, page 181.

    3. Vide Protest of the Minority of the Convention of Pennsylvania,
    Martin's Speech, etc.
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