Federalist No. 78: Unveiling the foundation of judicial independence

Forming Federalist 78: The intent and the rise of the federal judiciary in the United States 

Under the pen name of Publius, a series of essays unfold in a strong defense of the newly drafted United States Constitution. Battling against staunch critics of the proposed constitution, the Anti-Federalists, the Federalist Papers attempt to defend the provisions of the constitution and argue for its ratification. In efforts to ensure its ratification, Alexander Hamilton, James Madison, and John Jay defend the tripartite structure of the federal government and emphasize its role in protecting individual liberties, balancing power between the three branches, and promoting stability within the new nation. In a particular defense of the federal judiciary, Alexander Hamilton begins Federalist No. 78 by directly addressing the people of the state of New York and examining the newly proposed judiciary department. Rather than delving into the necessity of a federal judiciary, something that the Articles of Confederation had lacked, Hamilton acknowledges that there has been controversy on what the judiciary ought to constitute to ensure judicial independence and impartiality. In this article, I will explain the three main concerns that Hamilton addresses, demonstrate the arguments Hamilton provides for an independent judiciary with the necessity of lifetime appointments, and explain the significance of judicial independence in the promotion of stability and impartiality in the expansive court system of the United States of America. 

Historical Background: The Federalist Papers and their primary intent  

The Federalist Papers were a series of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay published under the pen name of Publius in order to defend the newly proposed constitution and ensure its ratification in the state of New York. The essays were published from October 1787 to May 1788 in several newspapers in New York. The three men writing the federalist papers were highly influential figures of the eighteenth century and contributed significantly to the founding of the country. Alexander Hamilton was a founding father who had fought for the colonies in the revolutionary war, assisted in the drafting of the constitution, and served as the country’s first Secretary of Treasury. James Madison was also a founding father who is notably known as the “Father of the Constitution.” In addition to drafting the constitution, Madison authored the Bill of Rights and served as the country’s fourth president. Most notably, Madison led the country through the War of 1812. Lastly, John Jay was also a founding father and was the first appointed Chief Justice of the Supreme Court of the United States. 

In regards to authorship of the federalist papers, Hamilton wrote a majority of the essays, authoring up to fifty-one of out the eighty-five essays, Madison wrote twenty-nine essays, and Jay wrote five. The primary objective of these essays was to address the concerns and criticisms put forth by the anti-federalists who feared that the new constitution centralized too much federal power. The primary belief of the anti-federalists was that the nation should amend the Articles of Confederation rather than support the enactment of a new constitution, paving way for a structural disagreement on the division of power between the federal government and the state governments. While the federalists wrote under the pseudonym of Publius, the main proponent of the anti-federalists wrote under the pseudonym of “Brutus,” which was published in a series of sixteen essays from October 1787 to April 1788 urging the citizens of New York to reject the ratification of the constitution. The author who penned those sixteen essays is widely believed to be Robert Yates, a New York state judge who represented the state of New York at the Constitutional Convention. Similarly to the Brutus essays, a series of other anti-federalist papers have been written under the pseudonym of “Cato.” Cato was published in a series of seven letters and is widely attributed to the New York Governor, George Clinton, who would later go on to become the fourth Vice President of the United States of America under both the Jefferson and Madison Administrations. It is important to note that at the time of the publication of these essays, the country was operating under the Articles of Confederation, which housed a single legislative branch and the Confederation Congress. Hence, the nexus of the debate created divisiveness between the federalists and the antifederalists on the core structure of the federal government and the amount of power it ought to hold. The federalists strongly believed that the current structure of the United States government caused great disjunction and poor coordination between the states. The anti-federalists believed moving away from this structure would expand federal power and lead to the erosion of state autonomy and individual liberties. The solution that the federalists proposed with the constitution was a tripartite federal government with balanced power between the legislative, executive, and judicial branches. Hence, leading to long-winded debates about the role of the federal government vs. state governments. After multiple discourses and debates from both sides, the U.S. constitution was ratified with the promise of the Bill of Rights to appease the anti-federalists’ concerns over individual liberties.

The three core arguments: the formation of the federal judicial branch and its role in administering equal justice under the law 

Hamilton’s Federalist No. 78, published on May 28, 1788, proposes three main objections and concerns that the anti-federalists hold regarding the newly proposed federal judiciary.

1: The appointment of judges 

2: The tenure of which the judges hold their office 

3: The partition of the judicial authority between the courts and their relations with one another 

The first concern over how judges ought to be appointed is quickly resolved as Hamilton argues that the process of appointing judges is similar to appointing union officers in Federalist 77 as “to this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true.” By addressing the concern of unduly influence of the executive over the legislative or the legislative over the executive, Hamilton outlines the process in which there is stability between the two branches as the President appoints judges and the judges will be confirmed with the advice and consent of the Senate. 

Secondarily, Hamilton’s main proposition comes from addressing the concern over the tenure that federal judges hold. Hamilton begins by assessing the main characteristic in which judges can effectively hold their office: good behavior. The Good Behavior Clause is introduced in Article III, Section I, as a method to ensure that federal judges hold their office for life without being subject to set terms in office or be influenced to make certain decisions under their “superiors.” Hamilton continues by stating that this model is nothing to fear, as most state constitutions hold a similar practice to ensure that judges are held accountable and serve only while exemplifying good behavior. In addition, Hamilton argues that this practice provides a breakthrough in terms of modern governance as judges administer the law fairly and impartially without the influence of a monarchy or the oppression of a representative body. The good behavior clause is a significant as it argues that federal judges ought to hold lifelong federal level through the commitment of good behavior, and it efficiently prevents political influence from the judiciary as judges will not be under pressure to make decisions based on their ability to get reelected or serve another term. This practice ensures that the judicial branch remains independent and apolitical, as its role requires impartiality in viewing its citizens as equal under the law. 

In efforts to assure critics of the idea of an independent judicial branch, Hamilton persuades his readers that the federal judiciary has no significant power over the other two branches. To launch his argument, Hamilton states that the judicial branch is “the least dangerous to the political rights of the Constitution.” Additionally, the most famous lines of Federalist No. 78 are uttered as “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.” By making the argument that the judiciary has no power over the sword or the purse, which allows the executive to enact laws and the legislative to make and fund them, Hamilton effectively assures the anti-federalists that the idea of an independent judicial branch is not threatening to the executive or the legislative branches as it only passes judgment over the actions of the other branches and deems whether they are adherent to the provisions of the constitution. Passing judgment only ensures that the other branches are adhering to their role and not overstepping the bounds to which they are restrained by the constitution. To continue supporting the necessity of judicial independence and lifelong tenure for federal judges, Hamilton goes on to argue that to ensure that fair judgments are passed, the judiciary needs not be codependent on the other two branches. Co-dependence is deemed a threat to the republic as the “natural feebleness of the judiciary” would be overpowered by the unduly political influence of the legislative and the executive. To prevent this, the idea of lifelong appointments is reinstated, as judges are not influenced politically and can make decisions that are fair and impartial. 

Judicial Independence: The crux of impartiality and upholding the rule of law 

Apart from reinstating the idea of judicial appointments and the importance of lifelong tenure, Hamilton shifts to discussing the role of the courts as mentioned in the constitution. The issue of a limited constitution is raised as Hamilton acknowledges that the constitution explicitly restricts certain acts by the government. Hamilton lists examples such as the prohibition of bills of attainder and ex-post-facto laws, as these limitations are key to preventing the overpowering of one branch over another. It is argued that the role of the judicial branch comes into effect as the courts are responsible for reviewing these limitations and declaring all acts that go against the constitution are void and unconstitutional. Though not explicitly stated, one can assume that this is the foundation of judicial review and the introduction of checks and balances, as the interpretation of laws is the judicial check on the executive and the legislative branch to maintain stability and balance. Hamilton warns that if this is not properly exercised, the limitations of power listed in the constitution would not amount to anything without the necessity of the judicial branch and its ability to interpret laws. In addition to arguing the necessity of judicial review, Hamilton addresses the concern that the ability of the judicial branch to interpret legislative acts as void overpowers the judicial branch over the legislative branch. To this, he states that this cannot be true as the role of the judicial branch is to serve as the intermediary between the people and the legislative branch. It is logical to assume that if the legislative branch does pass a bill that is in opposition to the constitution, then that act is void and must be declared as unconstitutional by the courts to ensure that the legislative branch is not overstepping its bounds. Hence, proposing the idea that the constitution is the fundamental law of the land and it is the job of the judges to uphold and defend the United States constitution by ensuring that no one branch is superior to the other, no one person is superior to another before the law, and that individual liberties are protected from infringement. This model of checks and balances ensures that the constitution is maintained with integrity and protected to adjudicate equal justice under the law. 

In addition to laying out the importance of judicial review, Hamilton clarifies the course of action for the courts if there are two contradictory laws.

1: The courts should attempt to reconcile the laws with one another if possible to ensure that one does not invalidate the other.

2: If the laws are mutually exclusive with one another, it is up to the courts to determine which law takes precedence. In determining this, it is important to prefer the more recent law over the other.

3: The more recent law ought to take precedence because it represents the will of the people and the intent of the legislative branch.

Hamilton also argues that this act does not pave the way for judges to impose their preferences or will onto the law. Rather, it allows for them to interpret the law that already exists and pass judgment upon whether it is in line with the constitution. Hamilton cements the argument for judicial independence and lifetime tenure by supposing that the ability to interpret the law independently of one’s own judgment allows for judges to make decisions to maintain impartiality and stability. Consequently, Hamilton also states that even though it is the job of the judges to administer justice, it is important for judges to defend the constitution against public and political pressure. In times of pressure of amending the constitution, judges must adhere to the constitution until it is formally changed or amended and not fall prey to temporary pressures from the public or their constituents. Additionally, when encountered with partial laws that discriminate against specific groups, it is the job of the judges to administer fair decisions and uphold the integrity of the judicial system. The institutional legitimacy of the court system is vital in ensuring that its citizens trust and respect its decisions. 

Lastly, Hamilton reiterates his argument by necessitating that an independent judiciary is key to an effective tripartite structure of government where no one branch is over the other. Permanent offices are also emphasized once again, as the volume of code of laws will make it difficult to acquire qualified individuals who are both knowledgeable about the volume of laws and maintain strict integrity in conducting justices. Hence, it is required for federal judges to have lifetime appointments to be familiarized with the volumes of laws and be independent of political influence to make constitutional judgment. If this is not the case, Hamilton argues that temporary judicial terms will cause the selection of less qualified judges to assume the bench. Hence, it is important to appoint qualified judges to the bench who will assume lifetime tenure to perfect their knowledge of the laws and administer justice.

Conclusion 

All in all, Federalist No. 78 cements the foundation for judicial independence and makes the argument for lifetime appointments for federal judges. Hamilton builds upon the provisions of Article III of the United States constitution and addresses the chief concerns put forth by the anti-federalists opposed to the idea of an independent judicial branch. Hamilton emphasizes the necessity of a judiciary independent of political influence from the executive or the legislative branch. By ensuring independence, Hamilton argues that the interpretation of laws and the administration of justice are properly conducted and legitimizes the federal judiciary as a credible institution. Additionally, Hamilton also argues that the system of checks and balances ensures that no one branch overpowers another and will function with one another to ensure stability within the new country. Hence, laying the groundwork for an independent judiciary that is fair and impartial. Through Federalist No. 78, Hamilton not only underscores the importance of judicial independence and lifetime appointments, he lays the framework for constitutional governance for the new nation that operates fairly and administers equal justice under the law.