Federalist Paper No. 78: How Powerful Should Judges Be?

Contributor: Suzanne Riordan. Lesson ID: 14049

Lifetime appointments for federal judges? The power to declare laws unconstitutional? Before the Constitution was ratified, many worried it would empower judges too much. Alexander Hamilton disagreed.


United States, Writing

English / Language Arts
learning style
Auditory, Visual
personality style
Beaver, Golden Retriever
Grade Level
High School (9-12)
Lesson Type
Dig Deeper

Lesson Plan - Get It!

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  • How much do you know about the United States judicial system?

Watch the video below for a quick review.

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Now, you are ready for this lesson!

Without some important documents called The Federalist Papers, it's possible that the U.S. Constitution would not have been ratified.

The Constitution of the United States

  • Did you know that some of the American Founding Fathers didn't like many elements of the Constitution?

They feared the federal government would become too strong and take away power from the people.

There was a great debate between the Anti-Federalists — those who feared a strong central government — and those who believed that the Constitution could balance the branches of government and guarantee everyone's freedom (the Federalists).

The Federalists — mainly James Madison and Alexander Hamilton — wrote The Federalist Papers to explain their arguments. They won the debate, and the Constitution was ratified.

But you could also say that the Anti-Federalists won the debate because their demand for a Bill of Rights became a reality. It specified some of the rights that American citizens would have.

So, really, you could say that all the citizens of America were the winners of this great debate. The Founders established a solid form of government and left a wealth of writing that reveals their thoughts on this most important document.

For more background, watch the following video.

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Now you are ready to explore Federalist Paper No. 78, written by Alexander Hamilton, which dealt with establishing the federal judicial system. In it, he explains three important facts about the judiciary branch.

  1. It must be an independent branch.
  2. Judges must have lifetime appointments.
  3. The judiciary branch must have the right of judicial review (the ability to judge if a law is constitutional).

Below is the introduction to the paper. Notice it's addressed to the people of New York. New York was an important state in the fight to ratify the Constitution, so Hamilton wrote his arguments for them.

Federalist Paper No. 78


The Judiciary Department
From McLEAN'S Edition, New York.

Author: Alexander 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.


Here is another excerpt in which Hamilton answers the objection that an independent judicial branch may become too powerful.


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.


Here he explains why the judiciary branch needs to have authority over the laws passed by the legislature.


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.


Now he argues for the lifetime appointments of judges.


For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." 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.


Now that you've been introduced to Federalist Paper No. 78, move to the Got It? section to analyze it!

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