Federalist No. 78

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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]

The Question then becomes "who decides what 'good behavior' is?"

"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 least dangerous to the political rights of the Constitution ....”

[edit] Notes

1. ^  Ira C. Lupu, "The Most-Cited Federalist Papers." 15 Constitutional Commentary 403-410 (1998)

1. ^  Bickel, Alexander M. "The Least Dangerous Branch." Yale University Press; 2 Edition, 1986

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Federalist No. 78