Federalist 78: The Court and the Constitution

Preamble to Constitution the United States of America

I find it fascinating to read the Federalist Papers and apprehend the thoughts of America’s greatest thinkers and founders. So much thought went into such a short document: the Constitution.

In this post, I finish up my analysis of Hamilton’s Federalist 78, in which he discusses the judiciary. His interpretation of the judiciary is more broad than that of some of the other founders’ interpretations (namely, Madison), but he shares the following fundamental belief with all his fellow founders: in all cases of law and interpretation the Constitution is supreme.

One: The Constitution Is Supreme

Hamilton explains why the legislature should not be the sole judge of their own laws Constitutionality. In other words, the weight of responsibility for keeping the legislature accountable to the Constitution should not fall squarely on the legislatures’ shoulders. They are sure to abuse such a responsibility.

photo of woman resting her hand on her chest

He says: “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’s ludicrous to think that the legislature, made up of flawed and ambitious humans, would rightly judge and confine their own powers to those powers enumerated by the Constitution. Man’s natural inclination is to push the limits of power, and Congress would do just that.

Notice that Hamilton does assume that the people do and will play a role in keeping their representatives accountable to the Constitution and he expounds on this idea in the quote below.

He proposes an alternative method of Constitutional confinement.

“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.”

Here, he seems to advocate for some small measure of judicial review—a power that was never Constitutionally awarded the courts. However, the power he speaks of is severely muted and merely allows the Court to ascertain the Constitutionality of a law. If the law and the Constitution are in opposition, the Constitution “ought to be preferred to the statue”.

He also says that the courts straddle the space between the people and the legislature, making sure that the legislature stays within their limited Constitutional authority. Think of it this way. The courts act on behalf of the people to protect the Constitution. That’s it.

Hamilton further impresses upon his readers the superiority of the Constitution in all matters.

“But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

He explains here that no matter when a law is passed—-the Constitution should always be held in higher regard than any law.

Two: The Court Cannot Become the Legislature

soldier statue

“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.”

Here Hamilton warns that the Court may, from time to time, choose to use their will while considering a legislative matter, rather than merely their judgement. The Constitution does not equip the courts to use their will for any matter. Their will IS the Constitution. Should they begin to impart their own will rather than merely judgement, based on the Constitution, they have simply become indistinct from the legislative body.

Such abuse should sound painfully familiar.

Three: As to The Permanency of Judicial Offices

In this next quote, Hamilton reasons why a judge or Justice should have a permanent seat on the bench. In other words, he justifies why the Constitution put no time limit on the court positions and only required good behavior to keep the position. He says:

“There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. 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…

man people woman sign

…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.”

Here his logic is straight forward enough. Agreeing with Madison’s distrust of human nature, he says that the wickedness of mankind will no doubt result in a litany of new laws and that, a judge or Justice, should know about these new laws and the old ones. The immensity of such information alone requires someone who has a breadth of knowledge that few individuals in America will have. Switching judges in and out of the bench in the way that legislatures are moved in and out of their position is unwise. A judge or Justice who has spent time on the bench has also spent time learning and acquiring a “competent knowledge” of the law and this cannot be done unless the judge or Justice is allowed ample time on the bench.


There’s really no substitute for the founder’s own words. Here, Hamilton respects the supremacy of the Constitution, warns of the dangers of legislating from the bench and justifies why the founders did not put term limits on the courts.

These quotes are but one snippet of this particular Federalist paper, and one Federalist paper amongst many that Hamilton wrote on the judicial branch.

No matter what part or which Federalist paper you read, however, there is one common theme. The courts are to protect and respect the Constitution. While that is the purpose of all the branches, it is especially pertinent to the courts.

Something they’ve long forgotten and would do well to remember.

It’s our job to remind them.

The Liberty Belle

4 thoughts on “Federalist 78: The Court and the Constitution”

    1. The one thing that totally angers me about the supreme court is the fact that politions have politicized the appointment of the judges. It should not matter what party they belong to what matters is do they rule according to the constitution period. That leads me to a question if they don’t how do we the people get rid of them? As far as the judges not having term limits I get that but at the same time they should know when to call it quits. Darth Vader Ginsburg is a prime example. Do we want people making laws that are as old as dirt? That goes for politions also. Correct me if you think I am wrong but I know the courts have become full of judges that rule with an agenda rather than law. They have become the ultimate power and that is dangerous. just sayin

  1. Pingback: The Court and the Constitution – The Liberty Belle – PatriotNewsSite.com

  2. Pingback: The Court and the Constitution – The Liberty Belle Cafe880 News and Views

Leave a Reply

Scroll to Top