Summary and Analysis Section XII: Judiciary: Federalist No. 78 (Hamilton)



This section of six chapters deals with the proposed structure of federal courts, their powers and jurisdiction, the method of appointing judges, and related matters.

A first important consideration was the manner of appointing federal judges, and the length of their tenure in office. They should be appointed in the same way as other federal officers, which had been discussed before. As to tenure, the Constitution proposed that they should hold office "during good behaviour," a provision to be found in the constitutions of almost all the states. As experience had proved, there was no better way of securing a steady, upright, and impartial administration of the law. To perform its functions well, the judiciary had to remain "truly distinct" from both the legislative and executive branches of the government, and act as a check on both.

There had been some question — Hamilton called it a "perplexity," as well he might — about the rights of the courts to declare a legislative act null and void if, in the court's opinion, it violated the Constitution. It was argued that this implied a "superiority of the judiciary to the legislative power." Not at all, Hamilton argued. The courts had to regard the Constitution as fundamental law, and it was, therefore, the responsibility of the courts "to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body." The same should apply to actions taken by the executive.


In this essay Hamilton discussed the question of whether the Supreme Court should have the authority to declare acts of Congress null and void because, in the Court's opinion, they violated the Constitution. Hamilton answered in the affirmative; such a power would tend to curb the "turbulence and follies of democracy." But others have disagreed with Hamilton about this. Among those who have wished to curtail the Supreme Court's power to invalidate acts of Congress have been Presidents Jefferson, Jackson, Lincoln, Theodore Roosevelt, and Franklin D. Roosevelt. The issue is still a live one, as is evident from the heated debates of recent years.