Hamilton moves on from the Presidency to the Judiciary in Federalist 78. Since the last paper was about the appointment process, Hamilton declines to discuss further this process as he feels he has already shown it to be the best compromise possible. As a reminder, the nomination by the President, and the advice and consent role of the Senate, are designed to ensure that only the most qualified people even receive a nomination, let alone be confirmed as Justices.
The major objection to the Judiciary that Hamilton addresses in this paper is that of the lifetime appointment. Justices serve for the duration of their “good behavior” which was the practice in several of the states at the time. It is worth quoting Hamilton here on the subject
“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.”
For any Republic to stand it must have that “steady, upright, and impartial administration of laws”. If the law fails to be any of those things, then by definition the application of law becomes arbitrary and the States would be no better than the principalities that preceded our founding. Hamilton points out that the Judiciary is the “least dangerous” to rights because while the Executive holds the “sword of the community” and with it the ability to use force, the Congress controls the “purse” as well as writes the laws governing the regulation of all citizens, the Judicial branch only has the weapon of “judgement” to draw upon. It is, in Hamilton’s words, “the weakest of the three departments of power”. As such, the one concern that the Founders had was its ability to “defend itself against their attacks.” If the other branches of government were to attack the legitimacy of the Courts the effect would be catastrophic because the Judicial branch has no power to defend itself. For these reasons, the lifetime appointment of Justices makes sense.
It is critical that the Judicial branch remain separate from the other two branches. Here Hamilton quotes Montesquieu, the enlightenment philosopher who said “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” If the Judicial branch were to encroach on the Executive function of enforcement or the Legislative power of writing laws, we would cease to be a Republic in any meaningful way. Further, the courts are the last defense for our “limited Constitution”. Here Hamilton points out that the power to legislate is not absolute. The Constitution forbids certain acts by Congress and it is the Judiciary that is responsible for ensuring that the other two branches do not exceed their authority. There was some concern that the courts could thwart the will of the people by declaring laws that were approved by the people’s representatives to be invalid.
It is important to remember here that our Founders did not trust democracy for the reasons that Plato and Aristotle also did not trust that form of government. They felt that it would inevitably lead to tyranny. Therefore Hamilton says that “No legislative act, therefore, contrary to the Constitution, can be valid.” The rights of the people are not negotiable. It is the reach of government that the Founders sought to limit, not the freedom of the people, and the Constitution is abundantly clear on this matter. It falls upon the Judicial system to ensure that the other branches operate “within the limits assigned to their authority.” While the Judiciary is the weakest branch of the proposed Republic it still possesses a critical role. It is not that the Judiciary is superior to the other two branches of government, but rather “It only supposes that the power of the people is superior to both.”
While that is true, it is also true that “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.” So, while the Judicial branch might declare a certain law unconstitutional, neither can it create law out of whole cloth when it disagrees with the action, or inaction, of the Legislative branch.
And finally, while it is certainly the right of the people to abolish any form of government that is oppressive, “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”.
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- All quotes are from https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493464 ↑