READING GUIDE FOR FEDERALIST #78

1. On what grounds does Hamilton argue that the judicial department of government is the least powerful branch of government?

It has the least capacity to annoy or injure the political rights of the Constitution. The executive makes appointments and holds the sword, and the legislature commands the purse and passes the laws. The judiciary has neither force, nor will; all it can do is exercise judgment and depend upon the executive to carry out its judgments.

2. Why do you suppose that Hamilton was so careful to point out the relative impotence of the judiciary?

To alleviate fears that this new department of government (there was no national judiciary under the Articles of Confederation) would be used to deny rights of the people.

3. What was Hamilton’s position regarding the power of the judiciary to declare void any legislative acts that were contrary to the Constitution?

The courts are needed to act as an intermediary between the legislature and the people in order to check the power of the former. If a law is in conflict with the Constitution, the latter must prevail because it represents the will of the people, as opposed to their representatives. Laws passed by representatives cannot supercede the fundamental law of the Constitution that represents the will of the people. The interpretation of laws falls to the judiciary because that is a “natural” function of the courts.
4. Why does Hamilton consider the independence of the judiciary to be a vital component of constitutional government?

Because the courts are the bulwarks of a limited Constitution against the encroachments of the legislature. Without judicial independence, judges would be unable to effectively check the legislature.

5. What arguments does Hamilton use to support life tenure for judges?

a. Life tenure frees judges from political pressure that might come from the legislature or executive if periodic appointments were made. Being freed from such pressure enables judges to guard against laws that are contrary to the Constitution.
b. Being a judge places great demands upon a person. Few men have the necessary abilities to be a judge , and few have the necessary ethical qualities, as well. Periodic appointments would discourage those few who are qualified, and would lead to less competent and less principled judges.