Federalist No. 78 is Alexander Hamilton’s 1788 essay arguing that the proposed federal judiciary should be independent, staffed by judges serving during good behavior, and empowered to strike down laws that violate the Constitution. Written to persuade New Yorkers to ratify the Constitution, it makes three claims that still define American law: judges must hold their offices for life, courts have both the authority and the duty to refuse to enforce unconstitutional statutes, and the judiciary is the “least dangerous” branch because it controls neither the military nor the treasury. Almost every modern argument about the Supreme Court eventually returns to the reasoning Hamilton laid out here.
Why Hamilton Called the Judiciary the Least Dangerous Branch
Hamilton opens with a structural comparison of the three branches. The executive “holds the sword of the community,” commanding the military and enforcing the law. The legislature “commands the purse,” setting taxes and spending. The judiciary, by contrast, “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.”1The Avalon Project. Federalist No 78 A court cannot raise an army, levy a tax, or spend a dollar. It can only judge.
That dependency is the core of the argument. Courts rely on the executive branch to carry out their rulings. A decision the president or federal agencies refuse to enforce is, practically speaking, just words on paper. Hamilton puts it bluntly: the judiciary possesses “neither FORCE nor WILL, but merely judgment.”1The Avalon Project. Federalist No 78 Because courts depend on the other branches to act, they cannot unilaterally threaten citizens’ political rights the way an overreaching president or a runaway Congress could.
Hamilton borrowed the separation-of-powers framework from Montesquieu, but he pushed the idea further. He was not just endorsing three separated branches in the abstract. He was arguing that the judiciary’s structural weakness is itself a safeguard, and that weakening it further, through short terms or political dependence, would remove the one check capable of holding Congress and the president to constitutional limits.
The Case for Judicial Review
Federalist No. 78 contains the most influential pre-Constitution defense of judicial review, the doctrine that courts can and must refuse to enforce laws that violate the Constitution. Hamilton builds the argument in a single chain. The Constitution is the “fundamental law” adopted by the people. Legislators are the people’s agents, bound by the limits the people set. When an act of Congress contradicts the Constitution, a court must choose between the two, and the higher authority wins. “The Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”1The Avalon Project. Federalist No 78
Hamilton anticipates the obvious objection: doesn’t this make the judiciary superior to Congress? His answer is no. When a court strikes down a statute, it is not asserting its own will over the legislature’s. It is enforcing the people’s will, as expressed in the Constitution, over the lesser authority of their elected representatives. The judge is an intermediary, not a ruler. Judicial review is a duty of interpretation, not an act of supremacy.
He also makes a practical argument that goes underappreciated. Without judicial review, every guarantee in the Constitution is unenforceable. The Bill of Rights, the limits on congressional power, the structural checks between branches, all of it becomes suggestion rather than binding law. Hamilton puts the point plainly: “Without this, all the reservations of particular rights or privileges would amount to nothing.”1The Avalon Project. Federalist No 78
The reasoning gains additional force from Article VI of the Constitution, which declares the Constitution and federal laws made under its authority “the supreme Law of the Land” and requires state judges to be bound by it. Article VI also requires every federal and state judicial officer to take an oath to support the Constitution, reinforcing that upholding the founding document is not optional for any court.2Congress.gov. Article VI
Life Tenure and Salary Protection
Article III of the Constitution provides that federal judges “shall hold their Offices during good Behaviour,” a phrase that effectively grants life tenure.3Congress.gov. U.S. Constitution – Article III Hamilton defends this arrangement as a structural necessity rather than a perk for judges. The legal system rests on a vast body of precedent and statutory law that takes years to master. Short-term appointments would drive skilled lawyers toward more stable careers, leaving the bench to people who treat a judgeship as a stepping stone. Worse, judges facing reappointment would have every incentive to curry favor with the politicians controlling their future. Life tenure removes that pressure and allows judges to develop the deep expertise complex constitutional questions demand.1The Avalon Project. Federalist No 78
Hamilton returns to independence in Federalist No. 79, focusing on money. His point is memorable: “A power over a man’s subsistence amounts to a power over his will.”4The Avalon Project. The Federalist Papers: No. 79 If Congress could slash a judge’s salary after an unpopular ruling, life tenure would be meaningless. The Constitution addresses this directly. Article III, Section 1 guarantees that judicial compensation “shall not be diminished during their Continuance in Office.”3Congress.gov. U.S. Constitution – Article III
Because judges serve for life, a salary adequate at confirmation could become inadequate decades later. The Constitution therefore allows Congress to raise judicial pay to keep up with economic change but never to lower it.4The Avalon Project. The Federalist Papers: No. 79 The one-way ratchet keeps Congress from using the budget as a weapon against the courts.
Independence as a Shield for Minority Rights
Hamilton’s most forceful passage explains why judges must be insulated from politics in the first place. A limited Constitution only works if someone can say no when the political branches overstep, and that someone has to be independent enough to withstand the backlash. Hamilton warns that temporary passions in society sometimes push the government to infringe on individual rights. An independent judiciary is the barrier against those impulses. Courts protect the rights of the minority when the majority’s enthusiasm runs ahead of the Constitution.
The structural pieces converge here. Life tenure keeps judges off the reelection treadmill. Salary protection keeps Congress from punishing unwelcome rulings. The lack of enforcement power keeps the judiciary from becoming a rival to the political branches. Together, these features create a branch powerful enough to check Congress and the president but too weak to threaten anyone on its own. A judge who owes nothing to the politicians currently in power is the only kind of judge who can credibly tell those politicians they have crossed a constitutional line.
The Anti-Federalist Response
Not everyone found Hamilton persuasive. The pseudonymous Anti-Federalist writer “Brutus” offered the sharpest rebuttal in his fifteenth essay. Where Hamilton saw a restrained branch that merely interprets the law, Brutus saw a body “exalted above all other power in the government, and subject to no control,” with “no power provided in this system to correct their construction or do it away.”5Teaching American History. Brutus XV
Brutus made several pointed arguments. Federal judges could effectively “control the legislature” by deciding the boundaries of congressional power, yet no higher authority existed to reverse their mistakes. Unlike British judges, who were accountable to Parliament, American federal judges under the proposed Constitution could not be removed for errors of judgment or lack of ability, only for criminal misconduct. The result, Brutus warned, was a judiciary “independent of the people, of the legislature, and of every power under heaven.”5Teaching American History. Brutus XV
Brutus also challenged the logic of importing life tenure from the English system. In England, that protection existed to prevent the king from controlling judges through threats of dismissal. The American system has no king, so the original justification doesn’t neatly transfer. The proposed Constitution adopted the independence of the English model without the accompanying checks that kept English judges answerable to Parliament. The disagreement between Hamilton and Brutus never fully resolved. Their competing visions of judicial power still animate arguments about court reform.
From Theory to Law: Marbury v. Madison
Hamilton’s reasoning stayed theoretical until 1803, when Chief Justice John Marshall built it into binding law. In Marbury v. Madison, Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is.”6Legal Information Institute (LII) – Cornell Law School. William Marbury v. James Madison, Secretary of State of the United States The parallels to Federalist No. 78 are hard to miss. Marshall tracks Hamilton’s logic almost point by point.
Marshall adopted Hamilton’s core framework: the Constitution is “a superior, paramount law, unchangeable by ordinary means,” and “a legislative act contrary to the constitution is not law.” When a statute and the Constitution conflict, the court must decide which governs, and the Constitution always wins. Marshall, like Hamilton, framed this not as judicial supremacy but as judicial duty. A court that refused to enforce the Constitution over an ordinary statute would be treating the founding document as no more binding than a routine law, which would make the entire project of a written constitution “absurd.”6Legal Information Institute (LII) – Cornell Law School. William Marbury v. James Madison, Secretary of State of the United States
Marbury transformed judicial review from a debating point into an established feature of American government. Every subsequent case in which the Supreme Court has struck down a federal or state law traces its authority back to Marshall’s opinion, and through it, to Hamilton’s essay.
Why Federalist 78 Still Matters
The essay sits at the center of one of the most active constitutional debates in the country: whether Supreme Court justices should serve fixed terms instead of for life. Proposals for eighteen-year staggered terms have gained traction in legal scholarship and policy circles. Supporters argue that life tenure, combined with modern lifespans far longer than anything the framers anticipated, gives individual justices outsized influence for decades and turns every vacancy into a political crisis. Regular turnover, they say, would lower the stakes of each appointment.
Opponents invoke Hamilton directly. Life tenure exists to insulate judges from political pressure, and replacing it with fixed terms would reintroduce exactly the dependence Hamilton warned against. A justice approaching the end of an eighteen-year term might angle for a post-Court career in politics or the private sector, creating the incentive structure that good-behavior tenure was designed to prevent. Most state supreme court systems already use some form of term limits or mandatory retirement ages, typically between 70 and 75, giving reformers real-world comparisons to study.
The same tension surfaces in debates over judicial ethics. When the Supreme Court adopted a written Code of Conduct in November 2023, critics noted that it lacks an independent enforcement mechanism, and justices effectively police themselves.7Supreme Court of the United States. Code of Conduct for Justices of the Supreme Court of the United States That echoes the concern Brutus raised in 1788: that the federal judiciary is subject to no control. Supporters counter that Hamilton’s design was never meant to produce accountability in the political sense. It was meant to produce independence, and independence has costs the framers accepted on purpose. Whether Federalist No. 78 describes a timeless safeguard or an eighteenth-century solution to an eighteenth-century problem is a question that shows no sign of settling.