Like all of The Federalist papers, it was published under the pseudonym Publius. 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 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. 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. 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. Some perplexity respecting the right 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.
There is no power above them, to control any of their decisions. In England, a judge can be removed from office “upon the address of both Houses of Parliament. It appears that Hamilton is relying on the efficacy of the writ of scire facias , coupled with a presumption that other branches of government will ignore unconstitutional judicial decisions, as a control upon judicial misconduct. 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. The tenure by which they are to hold their places. 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. The interpretation of the laws is the proper and peculiar province of the courts.
In short, they are independent of the people, of the legislature, and of every power under heaven. The remainer of the paper continues the arguments for life long appointments based on being independent from the other thessi of government and factions within the population, and the requirement for obtaining the most learned in the law and precedence to serve which would not happen if terms were short.
As to the tenure by which the judges are to hold their places: One can realistically wonder if the framers of the Constitution wanted the courts to be the sole voice on federal law constitutionality. It can be of no weight to say federwlist the courts, on the pretense of a tgesis, may substitute their own pleasure to the constitutional intentions of the legislature. The interpretation of the laws is the proper and peculiar province of the courts.
Federalist No. 78
It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. 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.
In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life.
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. WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, yhesis where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the id is by writ of scire facias in chancery.
Federalist Papers Summary 78
The tenure by which they are to hold their places. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to feederalist all acts contrary to the manifest tenor of the Constitution void. Although it was technically a writ of the sovereign, this power concerned only the interests of his subjects; as the King exercised it only as parens patriaehe was bound by law to allow the use of it to any subject interested.
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.
Of all the essays, No. The tenure by which they are to hold federalust places. And making the proper or for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. It was not until that the Supreme Court declared that it had not only the duty but it was their province to decide unconstitutionality, called judicial review. This page was last edited on 8 Marchat For I agree, that “there is no liberty, if the power of judging be efderalist separated from the legislative and executive powers.
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against ;aper encroachments, this consideration will afford a strong argument thesos the permanent tenure of judicial offices, since shat 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.
It argues that the federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency.
This coincides with the view above that thsis judicial branch is pape branch of judgment:. There is yet a further and a weighty reason for the permanency of the judicial offices which is deducible from the nature of the qualifications they require. 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.
It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty federailst 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. And it is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.
Federalist No. 78 – Wikipedia
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. Federalist Papers Summary No. But in a Constitutional system, any law contradicting the Constitution will be ruled invalid. As an aside, I find it curious that the Constitution does not explicitly give the courts the sole power to decide constitutionality of the laws even though the issue was discussed during the drafting of the Constitution.
Because of the courts’ weakness, Federalist No. 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.
It appears that Hamilton is relying on the efficacy of the writ of scire faciascoupled with a presumption that other branches of government will ignore unconstitutional judicial decisions, as a control upon judicial misconduct.
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. If there should happen to be an irreconcilable variance between the two, federalixt 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.