A first important consideration was the manner of appointing federal judges, and the length of their tenure in office. They should be appointed in the same way as other federal officers, which had been discussed before. As to tenure, the Constitution proposed that they should hold office " during good behaviour ," a provision to be found in the constitutions of almost all the states.
As experience had proved, there was no better way of securing a steady, upright, and impartial administration of the law. To perform its functions well, the judiciary had to remain "truly distinct" from both the legislative and executive branches of the government, and act as a check on both. There had been some question — Hamilton called it a "perplexity," as well he might — about the rights of the courts to declare a legislative act null and void if, in the court's opinion, it violated the Constitution.
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; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Because of the courts' weakness, Federalist No. The people will never be in danger if the structure of the government written up in the Constitution remains.
It also asserts that judgment needs to be removed from the groups that make the legislation and rule:. 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; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.
For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers. This coincides with the view above that the judicial branch is the branch of judgment:. 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 a 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. According to Federalist No. If there should happen to be an irreconcilable variance between the two, that 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.
They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. This principle of judicial review was affirmed by the Supreme Court in the case of Marbury v. From Wikipedia, the free encyclopedia. Retrieved from " https: Articles with short description All articles with unsourced statements Articles with unsourced statements from June Views Read Edit View history. In other projects Wikisource.
This page was last edited on 6 September , at 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.
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.
And it is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
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; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
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: I mean, so long as the judiciary remains truly distinct from both the legislative and executive.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. 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. 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 declare all acts contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or privileges would amount to nothing. 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.
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. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable. 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. 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 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, a 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. If there should happen to be an irreconcilable variance between the two, that 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.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.
The Federalist No. 78 The Judiciary Department Independent Journal Saturday, June 14, [Alexander Hamilton] To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government.
The Federalist Papers Questions and Answers. The Question and Answer section for The Federalist Papers is a great resource to ask questions, find answers, and discuss the novel.
This web-friendly presentation of the original text of the Federalist Papers (also known as The Federalist) was obtained from the e-text archives of Project Gutenberg. For more information, see About the Federalist Papers. In this essay Hamilton discussed the question of whether the Supreme Court should have the authority to declare acts of Congress null and void because, in the Court's opinion, they violated the Constitution. Federalist No. 78 (Hamilton) Section XII: Judiciary: Federalist No. 79 (Hamilton) Section XII: Judiciary: Federalist No. 80 (Hamilton).
4. A) 1st. See Federalist 76 and 5. A) 2nd. “As to tenure by which the judges are to hold their places: this chiefly concerns  their duration in office, [II] the provisions for their support, [III] the precaution for their responsibility.” The remainder of the essay covers . 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.