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The Federalist Papers | Federalist No. 78


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 deliberate reflection, have a tendency, in the meantime,
to occasion dangerous innovations in the government, and serious oppressions of the minor party
in the community. Though I trust the friends of the proposed
Constitution will never concur with its enemies,(3) in questioning that fundamental principle
of republican government, which admits the right of the people to alter or abolish the
established Constitution, whenever they find it inconsistent with their happiness, yet
it is not to be inferred from this principle, that the representatives of the people, whenever
a momentary inclination happens to lay hold of a majority of their constituents, incompatible
with the provisions in the existing Constitution, would, on that account, be justifiable in
a violation of those provisions; or that the courts would be under a greater obligation
to connive at infractions in this shape, than when they had proceeded wholly from the cabals
of the representative body. Until the people have, by some solemn and
authoritative act, annulled or changed the established form, it is binding upon themselves
collectively, as well as individually; and no presumption, or even knowledge, of their
sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require
an uncommon portion of fortitude in the judges to do their duty as faithful guardians of
the Constitution, where legislative invasions of it had been instigated by the major voice
of the community. But it is not with a view to infractions of
the Constitution only, that the independence of the judges may be an essential safeguard
against the effects of occasional ill humors in the society. These sometimes extend no farther than to
the injury of the private rights of particular classes of citizens, by unjust and partial
laws. Here also the firmness of the judicial magistracy
is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate
mischiefs of those which may have been passed, but it operates as a check upon the legislative
body in passing them; who, perceiving that obstacles to the success of iniquitous intention
are to be expected from the scruples of the courts, are in a manner compelled, by the
very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have
more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation
of the judiciary have already been felt in more States than one; and though they may
have displeased those whose sinister expectations they may have disappointed, they must have
commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought
to prize whatever will tend to beget or fortify that temper in the courts: as no man can be
sure that he may not be to-morrow the victim of a spirit of injustice, by which he may
be a gainer to-day. And every man must now feel, that the inevitable
tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce
in its stead universal distrust and distress. That inflexible and uniform adherence to the
rights of the Constitution, and of individuals, which we perceive to be indispensable in the
courts of justice, can certainly not be expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated,
or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed
either to the Executive or legislature, there would be danger of an improper complaisance
to the branch which possessed it; if to both, there would be an unwillingness to hazard
the displeasure of either; if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult popularity, to justify a reliance
that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason
for the permanency of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with great
propriety, that a voluminous code of laws is one of the inconveniences necessarily connected
with the advantages of a free government. To avoid an arbitrary discretion in the courts,
it is indispensable that they should be bound down by strict rules and precedents, which
serve to define and point out their duty in every particular case that comes before them;
and it will readily be conceived from the variety of controversies which grow out of
the folly and wickedness of mankind, that the records of those precedents must unavoidably
swell to a very considerable bulk, and must demand long and laborious study to acquire
a competent knowledge of them. Hence it is, that there can be but few men
in the society who will have sufficient skill in the laws to qualify them for the stations
of judges. And making the proper deductions for the ordinary
depravity of human nature, the number must be still smaller of those who unite the requisite
integrity with the requisite knowledge. These considerations apprise us, that the
government can have no great option between fit character; and that a temporary duration
in office, which would naturally discourage such characters from quitting a lucrative
line of practice to accept a seat on the bench, would have a tendency to throw the administration
of justice into hands less able, and less well qualified, to conduct it with utility
and dignity. In the present circumstances of this country,
and in those in which it is likely to be for a long time to come, the disadvantages on
this score would be greater than they may at first sight appear; but it must be confessed,
that they are far inferior to those which present themselves under the other aspects
of the subject. Upon the whole, there can be no room to doubt
that the convention acted wisely in copying from the models of those constitutions which
have established good behavior as the tenure of their judicial offices, in point of duration;
and that so far from being blamable on this account, their plan would have been inexcusably
defective, if it had wanted this important feature of good government. The experience of Great Britain affords an
illustrious comment on the excellence of the institution. PUBLIUS

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