1787 Federalist 78 · Founding Made Plain

11787 Federalist No. 78

2The Judiciary Department

3From McLEAN'S Edition, New York.

4HAMILTON

5To the People of the State of New York:

6WE PROCEED now to an examination

7 of the judiciary department of the proposed government.

8In unfolding the defects of the existing Confederation,

9 the utility and necessity of a federal judicature

10 have been clearly pointed out.

11It is the less necessary to recapitulate

12 the considerations there urged,

13 as the propriety of the institution in the abstract

14 is not disputed;

15 the only questions which have been raised

16 being relative to the manner of constituting it,

17 and to its extent.

18To these points, therefore,

19 our observations shall be confined.

20The manner of constituting it seems to embrace

21 these several objects:

22 1st. The mode of appointing the judges.

23 2d. The tenure by which they are to hold their places.

24 3d. The partition of the judiciary authority

25 between different courts,

26 and their relations to each other.

27First. As to the mode of appointing the judges;

28 this is the same with that of appointing

29 the officers of the Union in general,

30 and has been so fully discussed

31 in the two last numbers,

32 that nothing can be said here

33 which would not be useless repetition.

34Second. As to the tenure by which the judges

35 are to hold their places;

36 this chiefly concerns their duration in office;

37 the provisions for their support;

38 the precautions for their responsibility.

39According to the plan of the convention,

40 all judges who may be appointed by the United States

41 are to hold their offices DURING GOOD BEHAVIOR;

42 which is conformable to the most approved

43 of the State constitutions

44 and among the rest, to that of this State.

45Its propriety having been drawn into question

46 by the adversaries of that plan,

47 is no light symptom of the rage for objection,

48 which disorders their imaginations and judgments.

49The standard of good behavior

50 for the continuance in office

51 of the judicial magistracy,

52 is certainly one of the most valuable

53 of the modern improvements

54 in the practice of government.

55In a monarchy it is an excellent barrier

56 to the despotism of the prince;

57 in a republic it is a no less excellent barrier

58 to the encroachments and oppressions

59 of the representative body.

60And it is the best expedient which can be devised

61 in any government,

62 to secure a steady, upright,

63 and impartial administration

64 of the laws.

65Whoever attentively considers

66 the different departments of power

67 must perceive, that, in a government

68 in which they are separated from each other,

69 the judiciary, from the nature of its functions,

70 will always be the least dangerous

71 to the political rights of the Constitution;

72 because it will be least in a capacity

73 to annoy or injure them.

74The Executive not only dispenses the honors,

75 but holds the sword of the community.

76The legislature not only commands the purse,

77 but prescribes the rules

78 by which the duties and rights of every citizen

79 are to be regulated.

80The judiciary, on the contrary,

81 has no influence over either the sword or the purse;

82 no direction either of the strength or of the wealth

83 of the society;

84 and can take no active resolution whatever.

85It may truly be said to have neither FORCE nor WILL,

86 but merely judgment;

87 and must ultimately depend upon the aid

88 of the executive arm

89 even for the efficacy of its judgments.

90This simple view of the matter

91 suggests several important consequences.

92It proves incontestably,

93 that the judiciary is beyond comparison

94 the weakest of the three departments of power; 1

95 that it can never attack with success

96 either of the other two;

97 and that all possible care is requisite

98 to enable it to defend itself

99 against their attacks.

100It equally proves,

101 that though individual oppression

102 may now and then proceed

103 from the courts of justice,

104 the general liberty of the people

105 can never be endangered from that quarter;

106 I mean so long as the judiciary remains truly distinct

107 from both the legislature and the Executive.

108For I agree, that

109 "there is no liberty,

110 if the power of judging be not separated

111 from the legislative and executive powers." 2

112And it proves, in the last place,

113 that as liberty can have nothing to fear

114 from the judiciary alone,

115 but would have every thing to fear

116 from its union with either

117 of the other departments;

118 that as all the effects of such a union

119 must ensue from a dependence

120 of the former on the latter,

121 notwithstanding a nominal and apparent separation;

122 that as, from the natural feebleness of the judiciary,

123 it is in continual jeopardy

124 of being overpowered, awed, or influenced

125 by its co-ordinate branches;

126 and that as nothing can contribute so much

127 to its firmness and independence

128 as permanency in office,

129 this quality may therefore be justly regarded

130 as an indispensable ingredient in its constitution,

131 and, in a great measure,

132 as the citadel of the public justice

133 and the public security.

134The complete independence of the courts of justice

135 is peculiarly essential in a limited Constitution.

136By a limited Constitution, I understand one

137 which contains certain specified exceptions

138 to the legislative authority;

139 such, for instance, as that it shall pass

140 no bills of attainder, no ex-post-facto laws,

141 and the like.

142Limitations of this kind can be preserved in practice

143 no other way than through the medium

144 of courts of justice,

145 whose duty it must be

146 to declare all acts contrary

147 to the manifest tenor of the Constitution void.

148Without this, all the reservations

149 of particular rights or privileges

150 would amount to nothing.

151Some perplexity respecting the rights of the courts

152 to pronounce legislative acts void,

153 because contrary to the Constitution,

154 has arisen from an imagination

155 that the doctrine would imply a superiority

156 of the judiciary to the legislative power.

157It is urged that the authority

158 which can declare the acts of another void,

159 must necessarily be superior

160 to the one whose acts may be declared void.

161As this doctrine is of great importance

162 in all the American constitutions,

163 a brief discussion of the ground on which it rests

164 cannot be unacceptable.

165There is no position which depends on clearer principles,

166 than that every act of a delegated authority,

167 contrary to the tenor of the commission

168 under which it is exercised, is void.

169No legislative act, therefore,

170 contrary to the Constitution, can be valid.

171To deny this, would be to affirm,

172 that the deputy is greater than his principal;

173 that the servant is above his master;

174 that the representatives of the people

175 are superior to the people themselves;

176 that men acting by virtue of powers,

177 may do not only what their powers do not authorize,

178 but what they forbid.

179If it be said that the legislative body

180 are themselves the constitutional judges

181 of their own powers,

182 and that the construction they put upon them

183 is conclusive upon the other departments,

184 it may be answered,

185 that this cannot be the natural presumption,

186 where it is not to be collected

187 from any particular provisions in the Constitution.

188It is not otherwise to be supposed,

189 that the Constitution could intend

190 to enable the representatives of the people

191 to substitute their WILL

192 to that of their constituents.

193It is far more rational to suppose,

194 that the courts were designed

195 to be an intermediate body

196 between the people and the legislature,

197 in order, among other things,

198 to keep the latter within the limits

199 assigned to their authority.

200The interpretation of the laws

201 is the proper and peculiar province of the courts.

202A constitution is, in fact,

203 and must be regarded by the judges,

204 as a fundamental law.

205It therefore belongs to them to ascertain its meaning,

206 as well as the meaning of any particular act

207 proceeding from the legislative body.

208If there should happen to be an irreconcilable variance

209 between the two,

210 that which has the superior obligation and validity

211 ought, of course, to be preferred;

212 or, in other words,

213 the Constitution ought to be preferred

214 to the statute,

215 the intention of the people

216 to the intention of their agents.

217Nor does this conclusion by any means suppose

218 a superiority of the judicial to the legislative power.

219It only supposes that the power of the people

220 is superior to both;

221 and that where the will of the legislature,

222 declared in its statutes,

223 stands in opposition to that of the people,

224 declared in the Constitution,

225 the judges ought to be governed

226 by the latter rather than the former.

227They ought to regulate their decisions

228 by the fundamental laws,

229 rather than by those which are not fundamental.

230This exercise of judicial discretion,

231 in determining between two contradictory laws,

232 is exemplified in a familiar instance.

233It not uncommonly happens,

234 that there are two statutes existing at one time,

235 clashing in whole or in part with each other,

236 and neither of them containing any repealing clause

237 or expression.

238In such a case, it is the province of the courts

239 to liquidate and fix their meaning and operation.

240So far as they can, by any fair construction,

241 be reconciled to each other,

242 reason and law conspire to dictate

243 that this should be done;

244 where this is impracticable,

245 it becomes a matter of necessity

246 to give effect to one, in exclusion of the other.

247The rule which has obtained in the courts

248 for determining their relative validity is,

249 that the last in order of time

250 shall be preferred to the first.

251But this is a mere rule of construction,

252 not derived from any positive law,

253 but from the nature and reason of the thing.

254It is a rule not enjoined upon the courts

255 by legislative provision,

256 but adopted by themselves,

257 as consonant to truth and propriety,

258 for the direction of their conduct

259 as interpreters of the law.

260They thought it reasonable,

261 that between the interfering acts

262 of an EQUAL authority,

263 that which was the last indication of its will

264 should have the preference.

265But in regard to the interfering acts

266 of a superior and subordinate authority,

267 of an original and derivative power,

268 the nature and reason of the thing

269 indicate the converse of that rule

270 as proper to be followed.

271They teach us that the prior act of a superior

272 ought to be preferred

273 to the subsequent act of an inferior

274 and subordinate authority;

275 and that accordingly,

276 whenever a particular statute

277 contravenes the Constitution,

278 it will be the duty of the judicial tribunals

279 to adhere to the latter and disregard the former.

280It can be of no weight to say

281 that the courts, on the pretense of a repugnancy,

282 may substitute their own pleasure

283 to the constitutional intentions

284 of the legislature.

285This might as well happen

286 in the case of two contradictory statutes;

287 or it might as well happen

288 in every adjudication upon any single statute.

289The courts must declare the sense of the law;

290 and if they should be disposed

291 to exercise WILL instead of JUDGMENT,

292 the consequence would equally be the substitution

293 of their pleasure to that of the legislative body.

294The observation, if it prove any thing,

295 would prove that there ought to be no judges

296 distinct from that body.

297If, then, the courts of justice are to be considered

298 as the bulwarks of a limited Constitution

299 against legislative encroachments,

300 this consideration will afford a strong argument

301 for the permanent tenure of judicial offices,

302 since nothing will contribute so much as this

303 to that independent spirit in the judges

304 which must be essential

305 to the faithful performance of so arduous a duty.

306This independence of the judges is equally requisite

307 to guard the Constitution and the rights of individuals

308 from the effects of those ill humors,

309 which the arts of designing men,

310 or the influence of particular conjunctures,

311 sometimes disseminate among the people themselves,

312 and which, though they speedily give place

313 to better information,

314 and more deliberate reflection,

315 have a tendency, in the meantime,

316 to occasion dangerous innovations

317 in the government,

318 and serious oppressions of the minor party

319 in the community.

320Though I trust the friends of the proposed Constitution

321 will never concur with its enemies, 3

322 in questioning that fundamental principle

323 of republican government,

324 which admits the right of the people

325 to alter or abolish the established Constitution,

326 whenever they find it inconsistent

327 with their happiness,

328 yet it is not to be inferred from this principle,

329 that the representatives of the people,

330 whenever a momentary inclination happens

331 to lay hold of a majority of their constituents,

332 incompatible with the provisions

333 in the existing Constitution,

334 would, on that account,

335 be justifiable in a violation of those provisions;

336 or that the courts would be under

337 a greater obligation

338 to connive at infractions in this shape,

339 than when they had proceeded wholly

340 from the cabals of the representative body.

341Until the people have, by some solemn

342 and authoritative act,

343 annulled or changed the established form,

344 it is binding upon themselves collectively,

345 as well as individually;

346 and no presumption, or even knowledge,

347 of their sentiments,

348 can warrant their representatives

349 in a departure from it, prior to such an act.

350But it is easy to see,

351 that it would require an uncommon portion of fortitude

352 in the judges to do their duty

353 as faithful guardians of the Constitution,

354 where legislative invasions of it

355 had been instigated

356 by the major voice of the community.

357But it is not with a view to infractions

358 of the Constitution only,

359 that the independence of the judges

360 may be an essential safeguard

361 against the effects of occasional ill humors

362 in the society.

363These sometimes extend no farther

364 than to the injury of the private rights

365 of particular classes of citizens,

366 by unjust and partial laws.

367Here also the firmness of the judicial magistracy

368 is of vast importance

369 in mitigating the severity

370 and confining the operation of such laws.

371It not only serves to moderate the immediate mischiefs

372 of those which may have been passed,

373 but it operates as a check upon the legislative body

374 in passing them;

375 who, perceiving that obstacles to the success

376 of iniquitous intention

377 are to be expected from the scruples of the courts,

378 are in a manner compelled,

379 by the very motives of the injustice they meditate,

380 to qualify their attempts.

381This is a circumstance calculated

382 to have more influence upon the character

383 of our governments,

384 than but few may be aware of.

385The benefits of the integrity and moderation

386 of the judiciary have already been felt

387 in more States than one;

388 and though they may have displeased those

389 whose sinister expectations

390 they may have disappointed,

391 they must have commanded the esteem and applause

392 of all the virtuous and disinterested.

393Considerate men, of every description,

394 ought to prize whatever will tend

395 to beget or fortify that temper in the courts:

396 as no man can be sure

397 that he may not be to-morrow the victim

398 of a spirit of injustice,

399 by which he may be a gainer to-day.

400And every man must now feel,

401 that the inevitable tendency of such a spirit

402 is to sap the foundations

403 of public and private confidence,

404 and to introduce in its stead

405 universal distrust and distress.

406That inflexible and uniform adherence

407 to the rights of the Constitution, and of individuals,

408 which we perceive to be indispensable

409 in the courts of justice,

410 can certainly not be expected from judges

411 who hold their offices by a temporary commission.

412Periodical appointments, however regulated,

413 or by whomsoever made,

414 would, in some way or other,

415 be fatal to their necessary independence.

416If the power of making them was committed

417 either to the Executive or legislature,

418 there would be danger of an improper complaisance

419 to the branch which possessed it;

420 if to both,

421 there would be an unwillingness

422 to hazard the displeasure of either;

423 if to the people,

424 or to persons chosen by them

425 for the special purpose,

426 there would be too great a disposition

427 to consult popularity,

428 to justify a reliance that nothing

429 would be consulted

430 but the Constitution and the laws.

431There is yet a further and a weightier reason

432 for the permanency of the judicial offices,

433 which is deducible from the nature

434 of the qualifications they require.

435It has been frequently remarked, with great propriety,

436 that a voluminous code of laws

437 is one of the inconveniences necessarily connected

438 with the advantages of a free government.

439To avoid an arbitrary discretion in the courts,

440 it is indispensable that they should be bound down

441 by strict rules and precedents,

442 which serve to define and point out their duty

443 in every particular case that comes before them;

444 and it will readily be conceived

445 from the variety of controversies

446 which grow out of the folly

447 and wickedness of mankind,

448 that the records of those precedents

449 must unavoidably swell to a very considerable bulk,

450 and must demand long and laborious study

451 to acquire a competent knowledge of them.

452Hence it is, that there can be but few men in the society

453 who will have sufficient skill in the laws

454 to qualify them for the stations of judges.

455And making the proper deductions

456 for the ordinary depravity of human nature,

457 the number must be still smaller

458 of those who unite the requisite integrity

459 with the requisite knowledge.

460These considerations apprise us,

461 that the government can have no great option

462 between fit character;

463 and that a temporary duration in office,

464 which would naturally discourage such characters

465 from quitting a lucrative line of practice

466 to accept a seat on the bench,

467 would have a tendency

468 to throw the administration of justice

469 into hands less able, and less well qualified,

470 to conduct it with utility and dignity.

471In the present circumstances of this country,

472 and in those in which it is likely to be

473 for a long time to come,

474 the disadvantages on this score

475 would be greater than they may

476 at first sight appear;

477 but it must be confessed,

478 that they are far inferior

479 to those which present themselves

480 under the other aspects of the subject.

481Upon the whole, there can be no room to doubt

482 that the convention acted wisely

483 in copying from the models of those constitutions

484 which have established GOOD BEHAVIOR

485 as the tenure of their judicial offices,

486 in point of duration;

487 and that so far from being blamable on this account,

488 their plan would have been inexcusably defective,

489 if it had wanted this important feature

490 of good government.

491The experience of Great Britain

492 affords an illustrious comment

493 on the excellence of the institution.

494PUBLIUS.

4951 The celebrated Montesquieu, speaking of them, says:

496 "Of the three powers above mentioned,

497 the judiciary is next to nothing."

498 "Spirit of Laws.'' vol. i., page 186.

4992 Idem, page 181.

5003 Vide "Protest of the Minority

501 of the Convention of Pennsylvania,"

502 Martin's Speech, etc.