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Federalist 78 Analysis
AP U.S. Government & Politics
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ANALYTICAL READING ACTIVITIES
TOPIC 2.
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Acknowledgements
AP Curriculum, Instruction, and Assessment Team
####### Erin Spaulding, Senior Director, AP Curriculum, Instruction, and
####### Assessment
####### Amy Smallwood-Ringenberg, Director, AP Instructional Design
AP U. Government and Politics Instructional Design Team
####### Alicia Ross, Blue Ridge High School, New Milford, PA
####### Michael Dies, YES Prep Southeast, Houston, TX
####### Matt Furfaro, Concord Community High School, Elkhart, IN
Other Contributors
####### John R. Williamson
####### Christopher Budano
The Federalist No. 78
####### As you read the text, consider how Hamilton’s essay relates to our system
####### of separation of powers and checks and balances. Also consider how
####### he argues that a strong, independent judiciary is also essential to the
####### protection of the people’s liberties.
####### Federalist No. 78: The Judiciary Department
####### Author: 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.
####### In unfolding the defects of the existing Confederation, the utility and
####### necessity of a federal judicature have been clearly pointed out. 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. To these points, therefore, our observations shall be confined. ...
####### 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;
####### which is conformable to the most approved of the State constitutions and
####### among the rest, to that of this State. 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.
Check Your Understanding
Paraphrase Hamilton’s purpose and focus for this essay (as outlined in the opening paragraph) in the space below that paragraph.
Check Your Understanding
What does Hamilton mean when he says “good behavior”?
####### 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.
Source Analysis
According to Hamilton’s argument, why does lifetime appointment secure an “impartial administration of the laws”?
Check Your Understanding
What does Hamilton mean by the power of the “sword” and the power of the “purse”?
Connect to Content
Hamilton claims the judiciary has no influence over either “sword” or “purse.” Write a claim explaining whether there is any way in which the judiciary could potentially influence the “sword” or the “purse.”
####### Limitations of this kind can be preserved in practice no other way than
####### through the medium of 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 rights 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 ground 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.
Source Analysis
According to Hamilton’s argument, what is the duty of the courts in a limited Constitution and how might that duty be impaired?
Source Analysis
Underline the assumption of the Anti-Federalists that Hamilton is addressing here.
Source Analysis
Based on Hamilton’s argument, what would be the danger of allowing Congress to determine the constitutionality of their acts? How does this further develop his counterargument to critics of judicial review?
Analytical Reading Activities AP U. History
####### 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. 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. They ought to regulate their decisions by the fundamental laws,
####### rather than by those which are not fundamental. ...
Source Analysis
How does Hamilton further define the role of the courts? What line of reasoning does he employ here to support his claim?
Check Your Understanding
In the space below the paragraph, summarize how Hamilton refutes the critique that the power of judicial review would make the Court superior to the other branches.
After You Read
Thinking Like a Political Scientist
Reasoning Process: Comparison
####### What claim put forward by those opposed to a strong and independent
####### judiciary does Hamilton address?
####### How does he answer that claim? What does his response tell you about the
####### Framers’ intentions regarding the institutional design of the judiciary?
Political Science Disciplinary Practices
Source Analysis
####### How does Hamilton support his claim that life tenure (good behavior) is a
####### necessity for an independent judiciary?
####### How does Hamilton’s defense of lifetime tenure and of judicial review relate
####### to the principles of separation of powers and checks and balances?
Brutus No. 15
####### As you read documents from the founding era, you will notice that some
####### of the spelling of common words is different from the way we spell them
####### today. Sometimes editors modernize those spellings, and sometimes the
####### documents are presented exactly as they were written.
####### In this document, the following words are presented with older spellings.
####### How would we spell these words today?
####### controul _______________ behaviour _______________________
####### favour ________________ authorised _______________________
####### As you read the text, consider how Brutus responds to our system of
####### separation of powers and checks and balances. Compare the argument
####### in Brutus to that of Hamilton in Federalist No. 78.
####### Brutus XV
####### March 20, 1788
####### I said in my last number, that the supreme court under this constitution
####### would be exalted above all other power in the government, and subject
####### to no controul. The business of this paper will be to illustrate this, and to
####### shew the danger that will result from it. I question whether the world ever
####### saw, in any period of it, a court of justice invested with such immense
####### powers, and yet placed in a situation so little responsible.
####### ... The great reason assigned, why the judges in Britain ought to be
####### commissioned during good behaviour, is this, that they may be placed in
####### a situation, not to be influenced by the crown, to give such decisions, as
####### would tend to increase its powers and prerogatives. While the judges held
####### their places at the will and pleasure of the king, on whom they depended
####### not only for their offices, but also for their salaries, they were subject to
####### every undue influence. ... —They were absolutely dependent upon him
####### both for their offices and livings. The king, holding his office during life,
####### and transmitting it to his posterity as an inheritance, has much stronger
####### inducements to increase the prerogatives of his office than those who hold
####### their offices for stated periods, or even for life.
Check Your Understanding
Highlight or underline the author’s purpose in writing this essay.
####### 2d. They cannot be removed from office or suffer a dimunition [sic] of their
####### salaries, for any error in judgement or want of capacity.
####### It is expressly declared by the constitution,—“That they shall at stated
####### times receive a compensation for their services which shall not be
####### diminished during their continuance in office.”
####### The only clause in the constitution which provides for the removal of
####### the judges from office, is that which declares, that “the president, vice-
####### president, and all civil officers of the United States, shall be removed from
####### office, on impeachment for, and conviction of treason, bribery, or other high
####### crimes and misdemeanors. ...”
####### —Errors in judgement, or want of capacity to discharge the duties of the
####### office, can never be supposed to be included in these words, high crimes
####### and misdemeanors.
####### 3d. The power of this court is in many cases superior to that of the
####### legislature. I have shewed, in a former paper, that this court will be
####### authorised to decide upon the meaning of the constitution, and that, not
####### only according to the natural and ob[vious] meaning of the words, but also
####### according to the spirit and intention of it.
####### In the exercise of this power they will not be subordinate to, but above the
####### legislature. For all the departments of this government will receive their
####### powers, so far as they are expressed in the constitution, from the people
####### immediately, who are the source of power. ...
####### The supreme court then have a right, independent of the legislature, to
####### give a construction to the constitution and every part of it, and there is no
####### power provided in this system to correct their construction or do it away.
####### If, therefore, the legislature pass any laws, inconsistent with the sense the
####### judges put upon the constitution, they will declare it void; and therefore in
####### this respect their power is superior to that of the legislature.
Check Your Understanding
Highlight or underline the provision Brutus cites as the only way to remove judges.
Source Analysis
What are the limitations of that provision?
Check Your Understanding
How is Brutus defining the power of judicial review?
Source Analysis
How is he supporting the claim that the power of judicial review places the judiciary above the legislature?
####### Perhaps nothing could have been better conceived to facilitate the abolition
####### of the state governments than the constitution of the judicial. ...
####### ... the general legislature, might pass one law after another, extending
####### the general and abridging the state jurisdictions, and to sanction their
####### proceedings would have a course of decisions of the judicial to whom the
####### constitution has committed the power of explaining the constitution. – If
####### the states remonstrated, the constitutional mode of deciding upon the
####### validity of the law, is with the supreme court, and neither people, nor state
####### legislatures, nor the general legislature can remove them or reverse their
####### decrees.
####### Had the construction of the constitution been left with the legislature, they
####### would have explained it at their peril; if they exceed their powers, or sought
####### to find, in the spirit of the constitution, more than was expressed in the
####### letter, the people from whom they derived their power could remove them,
####### and do themselves right; and indeed I can see no other remedy that the
####### people can have against their rulers for encroachments of this nature.
####### A constitution is a compact of a people with their rulers; if the rulers break
####### the compact, the people have a right and ought to remove them and do
####### themselves justice; but in order to enable them to do this with the greater
####### facility, those whom the people chuse at stated periods, should have the
####### power in the last resort to determine the sense of the compact; ...
####### but when this power is lodged in the hands of men independent of the
####### people, and of their representatives, and who are not, constitutionally,
####### accountable for their opinions, no way is left to controul them but with a
####### high hand and an outstretched arm.
Check Your Understanding
Circle where, according to Brutus, the design of the judiciary may threaten state governments.
Check Your Understanding
Highlight or underline the remedy the people have if the legislature was given the power to interpret the Constitution and “exceeded their powers” in doing so.
Source Analysis
Why, according to Brutus, would this “remedy” not apply to the Supreme Court as outlined in the Constitution?
Making Connections
####### Based on the evidence, who do you think makes the more compelling
####### argument, Brutus or Hamilton? Specifically, does the Supreme Court
####### have too much power or is it the “least dangerous” branch of our federal
####### government? Support your response with examples.
####### Some have argued that the Supreme Court, being unelected, has too
####### much power in our system to “make new policy” through its decisions.
####### While others believe that the Court has been an important check on both
####### legislative and executive power. What do you think? Support your response
####### with examples.
Federalist 78 Analysis
Subject: AP U.S. Government & Politics
AP
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