The Power of the Judicial Branch: The
Federalist Number 78 and theAnti-Federalist
When the Constitution was first written, many people supported it. However, there were some
people who were opposed to it. The framers feared that not enough states would ratify it and
decided to write a series of persuasive papers to influence people's opinion. They attempted to
convince people that the structures and concepts in the Constitution were right for a country
seeking to balance power between a national government, state governments, and the people.
The series of articles written by Alexander Hamilton, James Madison, and John Jay, appeared in
local newspapers under the pseudonym Publius. Later, these articles were compiled and
published as a book called The Federalist Papers. Others who opposed the Constitution
compiled their response in a document called The Anti-Federalist Papers.
The Federalist Number 78 and the corresponding Anti-Federalist document dealt specifically
with the judicial branch of government. Read the excerpts from each of these texts then answer
the questions that follow.
The Federalist No. 78
WE PROCEED now to an examination of the judiciary department of the proposed government.
According to the plan of the convention, all judges who may be appointed by the United States
are to hold their offices DURING GOOD BEHAVIOR. . . . 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
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 . . . 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 . . . that . . . 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 the Executive. For I agree, that "there is no liberty, if the power of
judging be not separated from the legislative and executive powers." And it proves, in the last
place, that as liberty can have nothing to fear from the judiciary alone, but would have every
thing to fear from its union with either of the other departments . . . and that as nothing can
contribute so much to its firmness and independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great
measure, as the citadel of the public justice and the public security.
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.
If it be said that the legislative body are themselves the constitutional judges of their own powers
. . . 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 bo