FEDERALIST No. 78



The Judiciary Department

From McLEAN'S Edition, New York.

Wednesday, May 28, 1788



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.