Federalist Papers(redirected from Federalist, No. 78, and the Power of the Judiciary)
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A collection of eighty-five essays by Alexander Hamilton (1755–1804), James Madison (1751–1836), and John Jay (1745–1829) that explain the philosophy and defend the advantages of the U.S. Constitution.
The essays that constitute The Federalist Papers were published in various New York newspapers between October 27, 1787, and August 16, 1788, and appeared in book form in March and May 1788. They remain important statements of U.S. political and legal philosophy as well as a key source for understanding the U.S. Constitution.
The Federalist Papers originated in a contentious debate over ratification of the U.S. Constitution. After its completion by the Constitutional Convention on September 17, 1787, the Constitution required ratification by nine states before it could become effective. A group known as the Federalists favored passage of the Constitution, and the Anti-Federalists opposed it.
To secure its ratification in New York State, Federalists Hamilton, Madison, and Jay published the Federalist essays under the pseudonym Publius, a name taken from Publius Valerius Poplicola, a leading politician of the ancient Roman republic. Their purpose was to clarify and explain the provisions of the Constitution, expounding its benefits over the existing system of government under the Articles of Confederation.
Federalist, No. 78, and the Power of the Judiciary
"We proceed now to an examination of thejudiciary department of the proposed government." So begins Federalist, no. 78, the first of six essays by Alexander Hamilton on the role of the judiciary in the government established by the U.S. Constitution.
Hamilton made two principal points in the essay. First, he argued for the independence of the judiciary from the other two branches of government, the executive and the legislative. In presenting a case for the judiciary, he reached his second major conclusion: that the judiciary must be empowered to strike down laws passed by Congress that it deems "contrary to the manifest tenor of the Constitution."
In presenting his argument for the independence of the judiciary, Hamilton claimed that it was by far the weakest of the three branches. It did not, he said, have the "sword" of the executive, who is commander in chief of the nation's armed forces, nor the "purse" of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, "neither FORCE nor WILL but merely judgment."
As a result of this weakness, the U.S. Constitution protects the judiciary from the other two branches by what Hamilton called "permanency in office." Article III, Section 1, of the Constitution declares, "Judges … shall hold their Offices during good Behaviour." By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures that judges will not be changed according to the interests or whims of another branch of government. According to Hamilton, permanent tenure also recognizes the complexity of the law in a free society. Few people, he believed, will have the knowledge and the integrity to judge the law, and those deemed adequate to the office must be retained rather than replaced.
The judiciary must also be independent, according to Hamilton, so that it may fulfill its main purpose in a constitutional government: the protection of the "particular rights or privileges" of the people as set forth by the Constitution. Here, Hamilton made his second major point. To protect those rights, he proclaimed, the judiciary must be given the power of Judicial Review to declare as null and void laws that it deems unconstitutional.
Critics of the Constitution claimed that judicial review gave the judiciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no. 78, by arguing that both branches are inferior to the power of the people and that the judiciary's role is to ensure that the legislature remains a "servant" of the Constitution and the people who created it, not a "master":
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.
Although judicial review is not explicitly mentioned in the Constitution, the U.S. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the 1803 case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated "judicial activism" by striking down legislation, Hamilton was correct in foreseeing that the U.S. Supreme Court and lower courts would protect the rights defined by the people in their Constitution.
Hamilton, a New Yorker who served as treasury secretary under President George Washington from 1789 to 1795, was the principal architect of The Federalist Papers. Hamilton conceived the idea for the book and enlisted the aid of Madison and Jay. He is thought to have written fifty-one of the essays: numbers 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85. Madison, who served two terms as the president of the United States, from 1809 to 1817, probably authored twenty-six of the papers: 10, 14, 37–58, and 62–63. Madison and Hamilton probably wrote papers 18–20 together. Jay, who sat as the first chief justice of the U.S. Supreme Court, from 1789 to 1795, wrote five essays: 2–5 and 64.
The essays presented a number of arguments with great importance for the founding of the U.S. government. They forcefully made the case for a strong union between the states (numbers 1–14); the ineffectiveness of the Articles of Confederation (15–22); the advantages of a strong, or "energetic," central government (23–36); and a republican government's ability to provide political stability as well as liberty (35–51). The later essays examined the roles of the three branches of government—the legislative (52–66), the executive (67–77), and the judicial (78–83)—as well as the issue of a bill of rights (84). The last essay consists of a closing summary (85). In making their arguments, the authors also discussed the benefits of Federalism, under which the state and federal governments would each have a distinct sphere of power.
Several of the essays have been especially influential in U.S. political history and philosophy. The most famous, Federalist, no. 10, by Madison, concerns the dangers and remedies of factionalism for a republican government. Madison, seeking a "republican remedy for the diseases most incident to republican government," argued that a large republic of the kind envisioned by the Constitution will be less likely to fall victim to disputes between different factions than will a small republic. Here and in essay 51, Madison claimed that the diversity, or "plurality," of interests that exist in a large commercial republic will prevent any one faction from uniting to deprive the rights of a smaller faction.
The essays on the role of the federal judiciary have had a lasting influence on U.S. law. Essay 78 contains an important defense of the principle of Judicial Review, the power that allows the U.S. Supreme Court to strike down laws passed by Congress. In number 80, Hamilton argued for the establishment of a system of federal courts separate from state courts, an idea that was realized several years later.
Bailyn, Bernard. 1998. The Federalist Papers. Washington, D.C.: Library of Congress.
Hamilton, Alexander, James Madison, and John Jay. 1787–88. The Federalist Papers. Reprint, New York: New American Library of World Literature, 1961.
Helfman, Tara. 2002. "The Law of Nations in 'The Federalist Papers'." Journal of Legal History 23 (August): 107–28.
Martinez, J. Michael, and William D. Richardson. 2000."The Federalist Papers and Legal Interpretation." South Dakota Law Review 45 (summer): 307–33.