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Alexander Hamilton, author of Federalist No. 78

Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of the Federalist Papers. Like all of the Federalist Papers, it was published under the pseudonym Publius.

The essay was published May 28, 1788 and first appeared in a newspaper, where most contemporary readers would have seen it, on June 14 of the same year. It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the first of six essays by Hamilton on this issue. In particular, 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 be appointed for life. Federalist No. 78 is titled, "The Judiciary Department."

The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by American jurists. Of all the essays, No. 78 is the second-most cited, behind only Federalist No. 42.[1]

In Federalist No. 78, Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three. Hamilton believed that because the judiciary had neither "FORCE nor WILL" to enforce its judgments, there was little concern that the judiciary would be able to overpower the political branches. The political branches have the institutional capacity to make and enforce the law: Congress controls the money flow and the President controls the military. Courts, on the other hand, do not have the same clout from a constitutional design standpoint. The judiciary depends on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. [2]

A question then surfaces, "Who decides what 'good behavior' is?"


Controls On Judicial Conduct

The fundamental debate between Hamilton and his Anti-Federalist rival "Brutus" addressed in 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.[4] 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 system in toto (with minor modifications); Hamilton defended the present system.


Good Behavior Tenure

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 bestow life tenure, which created an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security. [6] Without some kind of effective control upon their conduct, this would engender intolerable injustice, as the King’s ministers would be free to 'vent their spleen' upon defenseless subjects with impunity.

The English solution to this problem was to condition the holding of office upon good behavior, as enforced by the people through the writ of scire facias. Although it was technically a writ of the sovereign, this power concerned only the interests of his subjects; as the King exercised it only as parens patriae, he was bound by law to allow the use of it to any subject 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 be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias. [7]

Violations of good behavior tenure at common law included "abuse of office, nonuse of office, and refusal to exercise an office," [8] and the "oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office, [which could be prosecuted] by information in the court of king's bench."[9] As the remedy of the writ of scire facias was available in every one of the colonies, [10] its efficacy as a deterrent against abuse of judicial office was assumed rather than debated.

Legislative Review Of Judicial Decisions

The primary point of contention between Hamilton and Brutus was in the well-founded concern that judges would substitute their will for the plain 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:

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. ... 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.

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

There is no power 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 will generally soon feel themselves independent of heaven itself. [12]

Hamilton viewed this apparent flaw in constitutional design as more of a virtue than a vice:

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.

It appears that Hamilton is relying on the efficacy of the writ of scire facias, coupled with a presumption that other branches of government will ignore unconstitutional judicial decisions, as a control upon judicial misconduct.


  1. ^  Ira C. Lupu, "The Most-Cited Federalist Papers." 15 Constitutional Commentary 403-410 (1998).
  2. ^  Bickel, Alexander M. "The Least Dangerous Branch." Yale University Press; 2 Edition, 1986.
  3. ^  Act of Settlement, Part III, para. 8 (G.B. 1701).
  4. ^  See, Robertson v. Baldwin, 165 U.S. 275, 297 (1897) (Harlan, J., dissenting).
  5. ^  See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer).
  6. ^  See e.g., Harcourt v. Fox, 1 Show. 426 (K.B. 1692) (re: clerk of the peace).
  7. ^  3 Blackstone, Commentaries 260-61; see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).
  8. ^  Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (quoting Coke's Institutes).
  9. ^  4 Blackstone, Commentaries at 140-41.
  10. ^  Prakash at 102-114.
  11. ^  John Paul Stevens [Associate Justice, United States Supreme Court], “Two Questions About Justice,” 2003 Ill. L. Rev. 821
  12. ^  Anti-Federalist 78-79 ("Brutus").[13]

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