The Penguin Guide to the United States Constitution by Richard Beeman

Author:Richard Beeman
Language: eng
Format: epub
Publisher: Penguin Group (USA), Inc.
Published: 2010-07-25T16:00:00+00:00

FEDERALIST NO. 78: ALEXANDER HAMILTON, MAY 28, 1788

“Federalist No. 78” is Alexander Hamilton’s most significant contribution to The Federalist Papers. The principle topic of the essay is the importance of protecting the “weakest of the three departments” of government, the judiciary, from encroachments by the executive and, in particular, the legislative branches. Hamilton’s solution to this problem was to create a judicial branch that could operate as independently of influence from the other two branches of government as possible. The best way to do this, he argues, is to appoint federal judges for a term of “good behaviour”—in effect, for life.

In the course of his argument supporting lifetime terms for federal judges, Hamilton states explicitly what many of the Founding Fathers had long believed but had not written into the Constitution: “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 the 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.” This assertion of the right of “judicial review” would not be established as a constitutional precedent until the Supreme Court rendered its decision in Marbury v. Madison in 1803, but it was an important portent of constitutional developments to come.

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