The experience of Great Britain affords an illustrious comment on the excellence of the institution. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers. Force we understand, decisions made by the courts can only be enforced by the executive branch. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.

But in a Constitutional system, any law contradicting the Constitution will be ruled invalid. Does he make the case for what we today would call judicial review? 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. By using this site, you agree to the Terms of Use and Privacy Policy. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. 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. Will means the courts can not interpret laws based on the courts desires, or political views, in other words they are not activists.

There is no authority that can remove them, and they cannot be controlled by the laws of the legislature.

Federalist Papers Summary 78

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. One can realistically wonder if the framers of the Constitution wanted the courts to be the sole voice on federal law constitutionality. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

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; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.


Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. The Executive not only dispenses the honors, but holds the sword of the community.

Federalist Papers Summary 78

Because of the courts’ weakness, Federalist No. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each wwhat, and neither of them containing any repealing clause or expression.

what is the thesis of federalist paper #78

For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers. It is a rule not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. First, the mode of appointing judges.

Federalist Paper #78 by Deondrae Carter on Prezi

It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States ; it is the first of six essays by Hamilton on this issue.

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.

He says if this happens it only proves there should be no judges. 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.

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. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as ghe tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their 7#8 would have been inexcusably defective, if it had wanted this important feature of good government.

Hamilton viewed this as federqlist protection against abuse of power by Congress. Wikisource has original text related to this article: Federalist Papers Summary No.


what is the thesis of federalist paper #78

Federalist Papers Summaries Index Page. Go back to the main documents page. It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. To these points, therefore, our observations shall be confined.

No legislative act, therefore, contrary to the Constitution, can be valid. This principle of judicial review was affirmed by the Supreme Court in the case of Marbury v. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing.

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.

Federalist No. 78

Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.

The partition of the judiciary authority between different courts, and their relations to each other. Rather, it ensures that the Constitution remain the supreme law of the land. From Wikipedia, the free encyclopedia.

It not only paped 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 an 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.