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Lauren Arnold

Lauren Arnold

Dr. Jeffrey

GOV202

23 March 2018

Federalist 78 Summary

In Federalist paper 78, Alexander Hamilton discusses the importance of the independent judiciary and their role for the new government, arguing that the Judicial branch is the least dangerous in association with the rights of the American people. Hamilton covers the scope of power of the Judicial branch because of concerns raised by the anti-Federalists from smaller states. One concern was that judiciary power lacks accountability and is given too much independence, especially inferring to the justices’ lifetime tenure. However, Hamilton addresses that the judges appointed are to “hold their offices during good behavior” (380). Holding offices in good behavior is important for a republic because, “it is a no less excellent barrier to the encroachments and oppressions of the representative body” (380). As long as the justices are abiding by the law, then they are entitled to occupy their position for as long as they wish, even until death.

Hamilton argues that the Judicial branch is the weakest branch because it has no implementation of power: “no influence over either the sword or the purse” (380). The Legislative branch is the most powerful branch because it has the power of the purse; it has complete control over money, such as funding and taxation. The Executive branch is the second most powerful, holding the sword– power over the military. Another important factor of the Executive branch is that it is concentrated in the hands of a unified and energetic president, making it absolutely necessary to secure stability in the US and abroad. The essential role of the judiciary is the being the arbitrator when cases come to it as to whether or not something is constitutional.

The next point that Hamilton makes elaborates on the topic of giving the justices lifetime tenure, which was a controversial topic amongst the anti-Federalists. The lifetime tenure is important in the Judicial branch because it offers the justices independence from the other two branches of government. Hamilton says, “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” (381). Hamilton argues that the Judicial branch needs to be truly distinct from the other two branches in order to maintain its independence, which would free them from the constraints of law and government.

One other important point that Hamilton makes regards how independence in the court system is essential for their protection, “The independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society” (383). The justices need to be as independent as possible after they are appointed and confirmed by the senate, so they will not be persuaded by outside forces, so they can rule in a way that’s constitutionally sound, and so they do not have to worry about whether they will be reappointed or removed. Judicial independence is necessary to prevent Congress and the Executive from overrunning the judiciary. Independence gives judges space to use their best judgement in accordance with legal code and precedence to decide on cases faithfully under the Constitution.

The third point that Hamilton makes is that the judiciary was established to protect the Constitution. In regards to protecting the Constitution, Hamilton remarks that “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” (382). The Constitution is the fundamental law, therefore it is important that the judges take its meaning seriously in order to not only maintain the separation of powers and checks and balances, but to be a safeguard to the people’s rights. An example of the judiciary protecting rights is in an event that a law is passed which might harm the Bill of Rights. The Constitution is their foundation, and it is up to the justices to protect it.

Federalist 78 Summary

Discusses the importance of the independent judiciary and their role for the new government

“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;” (380)

As long as the justices are abiding by the law, then they are entitled to occupy that position for as long as they wish, even until death.

Hamilton addressing the concerns that were written down in the Anti-fed papers under the pseudonym Brutus

Anti-feds’ Concern:

Judiciary power lacks accountability and is way too independent

Anti feds are afraid that if the US gets the “guys” in here (have lifetime terms, appointed by the president and confirmed by the senate; don’t see “light of day” when it comes to people and democracy) So if someone comes in and starts imposing their will over the constitution, what will we do?

They can have their lifetime term with good behavior:

Concern is–

Once they get in there, they will dominate

Hamilton says “chill”, they have no power over money, no power over the army; says they are totally weakest of the branches

He says they are men of virtue, and we should trust them

“To avoid arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them

Federalist 78:

Hamilton addresses the scope of power of the judicial branch– a major concern to the anti-federalists in smaller states

Judicial branch designed to be the weakest of the three branches

“No influence over either the sword or the purse” (380)

It does not impact financial matters/purse (funding or taxation) because that is a power of Congress

Does not have power over the military (sword)

Easily the weakest of the three branches– it has no implementation power

Essential role is the arbitrator when cases come to it as to whether or not something is constitutional

No influence in laws during the creation process or execution process

The interpretation of the laws is the proper and peculiar province of the courts. (381-382)

It is proper that there should be a separate body that governs over the revision of laws; but it’s also peculiar to the United States, because no other nation at the time had a separate judicial system independent from other branches of government

Point 2:

Judicial branch needs to have life tenure for the federal judges (controversial)

But Hamilton makes the point that the judicial branch needs to be truly distinct from the other two branches to maintain its independence

“The independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society” (383)

You want the justices to be as independent as possible after they are appointed and confirmed by the senate so they will not be persuaded by outside forces; so they can rule in a way that’s constitutionally sound and they do not have to worry about ramifications whether that they will be reappointed or removed; this is a major protection that allows the justices to remain independent

Point three:

The judiciary is established to protect the constitution

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. (382)

Judicial branch is the one in charge that will not only maintain the separation of powers and checks and balances, but it will be a safeguard to the people’s rights

Therefore, the Constitution is their foundation and it is up to them (justices) to protect it; which in the end protects people’s rights

Example: the judicial branch will safeguard people’s rights in the event that a law is passed by Congress that might harm the Bill of Rights

The design of the judicial branch protects the courts independence as a branch of government

Judicial review: The Supreme court reviews all laws and executive actions to make sure they abide by the Constitution

The Constitution is the supreme law of the land; taking precedence over any laws that are created, just as we are the most important representatives or political bodies within the nation

In other words…

The Supreme Court interprets the laws and reviews the actions of the executive branch

It is the job of the Supreme Court to make sure that the actions of the President abide by the Constitution

Legislative branch with the power of the purse is the most powerful branch; people find their refuge in the Congress

Executive branch holds the power of the sword, is concentrated in the hands of a unified and energetic president; absolutely necessary to secure stability in the US and abroad

Judicial branch is the least dangerous branch

As soon as Hamilton addresses the court’s lack of influence (purse and sword) he described the power “judicial review”

“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.” (381)

“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.” (382)

The court would have invariably would have the power and authority to rule in act of Congress or the POTUS uncostitutional; “No legislative act, therefore, contrary to the Constitution, can be valid.” (381)…. “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.”

No servant is above his master, our master is not found in men, but in our laws; who decides what those laws mean?– the courts, the least dangerous branch?

Federal 78: Hamilton’s famous defense on the proposed federal judiciary

Argument that the branch would be the least dangerous to the rights of the people

Brutus argued federalists had made the judges independent to the fullest sense of the word; there is no power above them to control any of their decisions; no authority that can remove them; and they cannot be controlled by the laws of the legislature… they are independent of the people, legislature, and of every power under heaven

Hamilton defended the judiciary, defended the power of judicial review, defended life tenure

We should give independence to judges simply to free them from the constraints of law and government

“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.” (381)

How judicial independence checks the other branches: it prevents Congress and Executive branch from overrunning the judiciary… gives the judge a space to use his best judgement in accordance with legal code and precedence to decide cases faithfully under the Constitution and the laws

The best judges would be produced by a lifetime of study– laws, of legal code, precedence; in order to faithfully execute his office= purpose of judicial independence

Idea that these judges would need to be protected from the other branches, or else they wouldn’t be able to do their job correctly and they wouldn’t have the incentive to leave practice and serve in government

When the court is called on more and more to decide controversial, social, cultural issues, it is extremely important for the courts to exercise self-restraint that Hamilton promised it would in 78.