The Federalist Papers
enlightened and reasonable people?
PUBLIUS
E1. These two alternate endings of this sentence appear in different
editions.
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