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The Federalist No. 78

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Alexander Hamilton, James Madison, and John Jay

Federalist No. 78
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Hamilton viewed this as a protection against abuse of power by Congress. The fundamental debate that Hamilton and his Anti-Federalist rival " Brutus " addressed was over the degree of independence to be granted to federal judges, and the level of accountability to be imposed upon them. In England, a judge can be removed from office "upon the address of both Houses of Parliament.

Brutus took the position that the Constitution should adopt the English system in toto with minor modifications ; Hamilton defended the present system. In England, although most agents of the Crown served "at the pleasure of the King," public officials were often granted a life tenure in their offices. The English solution to this problem was to condition the holding of office upon good behavior, as enforced by the people through the writ of scire facias. 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 patriae , he was bound by law to allow the use of it to any subject interested.

Sir William Blackstone explains in his landmark treatise on the common law , Commentaries on the Laws of England:.

WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him upon his petition to use his royal name for repealing the patent in a scire facias.

Violations of good behavior tenure at common law included "abuse of office, nonuse of office, and refusal to exercise an office," [8] and the "oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office, [which could be prosecuted] by information in the court of king's bench.

The primary point of contention between Hamilton and Brutus was in the concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.

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. 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.

Brutus pointed out that the Constitution did not provide an effective mechanism for controlling judicial caprice:. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature.

In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. 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. 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.

Rather, it is the responsibility of the federal courts to protect the people by restraining the legislature from acting inconsistently with the Constitution:.

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 only power of the judicial branch is the power of judgment:. The Executive not only dispenses the honors, but holds the sword of the community. Hamilton insisted that the judiciary must be completely distinct from the other two branches of government, the legislative and executive. Hamilton also discussed the length of a federal judge's term in office. He felt that judges, once appointed, should remain in office as long as they display "good behavior," though he leaves the definition of good behavior vague.

Most of the ideas discussed in this paper have been incorporated into the U. Constitution and the constitutions of numerous states. The papers laid the groundwork for the Constitution and made the case for ratification. What Is "Federalist No. Quick Answer The "Federalist No. Who Wrote the Federalist Papers? Robert Llewellyn Photolibrary Getty Images. Full Answer In "Federalist No.

Alexander Hamilton

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The Federalist Papers study guide contains a biography of Alexander Hamilton, John Jay and James Madison, literature essays, a complete e-text, quiz questions, major themes, characters, and a full summary and analysis.

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Summary This section of six chapters deals with the proposed structure of federal courts, their powers and jurisdiction, the method of appointing judges, and re Federalist No. 78 (Hamilton) Sign In | Sign Up.

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The Federalist Papers Summary No Hamilton May 28, This paper begins an examination of the judiciary department of the proposed government. It examines primarily the term of office for judges but in making the case for lifetime appointments it details the responsibilities of the federal courts. Source: The Federalist: The Gideon Edition, eds. George W. Carey and James McClellan (Indianapolis: Liberty Fund, ), This is the first of five essays written by Hamilton on the Judiciary.

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"Federalist No. 78" is just one of 85 essays included in "The Federalist Papers," which were a series of documents written by Hamilton, James Madison and John Jay. The papers laid the groundwork for the Constitution and made the case for ratification. Analysis of Federalist Paper #78 Standard Hamilton begins by telling the readers that this paper will discuss the importance of an independent judicial branch and the meaning of judicial review.