Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?

Alexander Hamilton called the courts the least dangerous branch of the government. Anyone who has watched a Supreme Court confirmation hearing in the last forty years may be forgiven for raising an eyebrow. Senators shout. Activists camp on the marble steps. Cable anchors count to five. For the least dangerous branch, the judiciary has an astonishingly well-funded security detail of lobbyists.

So was he wrong? The answer requires reading what he actually wrote, which is rarer than quoting it. Federalist 78 appeared in 1788, one of the essays defending the proposed Constitution that were printed in the New York press, and it has become the founding charter of judicial review and the yardstick by which every judge since has been measured, whether the judge likes it or not. Let us read it passage by passage, say what it meant then and what it means now, and test its claims against what two centuries have shown.

The setting

Federalist 78 is the first of a run of essays on the judiciary, written by Hamilton in the spring of 1788 as New York's ratifying convention approached. The opponents of ratification, writing as the Anti-Federalists, worried among other things that the proposed national courts would grow into an unaccountable power. One of the most vigorous of them, writing as "Brutus," argued that the Supreme Court would be above any real control and would gradually expand the national government at the expense of the states. Hamilton's essays were, in part, the reply.

The six essays that bear on the courts are numbers 78 through 83. This post reads number 78 closely and uses numbers 79, 80 and 81 to test it.

Passage one: the weakest branch

Hamilton begins with a comparison. "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." He then sets the three branches side by side: "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."

What it meant then. The President commands the army and appoints officers. Congress taxes and spends. The courts have neither troops nor treasury. They depend on the other branches to carry out their orders. A court that issues a judgment and finds no one to enforce it has merely written an essay.

What it means now. The point survives as a statement of the Court's nature, even if the Court's reach has grown. It is the best reminder that the Court's power depends on public acceptance. When President Eisenhower sent federal troops to Little Rock in 1957, it was the executive's sword that enforced the judiciary's judgment in the school desegregation cases. Hamilton's point, that the courts must borrow the sword, held.

Test. Hamilton was right about the Court's formal powers and is only half right about its practical ones. A court that cannot enforce its judgments is weak. A court that sets the terms of every national debate by declaring what the Constitution means is not weak at all. The sword is the executive's. The pen, though, is the Court's, and on questions where the other branches will not push back, the pen can be mightier than he knew.

Passage two: the limited Constitution

Hamilton then turns to the question that gives the essay its lasting importance: why may courts decline to enforce an act of Congress? His answer begins with the nature of 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 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."

What it meant then. The Constitution bars Congress from certain acts: Article I, Section 9 lists them. A prohibition is only as good as the body that enforces it. If Congress passes a bill of attainder and no one can refuse to apply it, the prohibition is only a suggestion.

What it means now. This is the heart of the argument for judicial review. Every modern case in which a court strikes down a law as unconstitutional rests on the reasoning in this paragraph. Note, though, that Hamilton is describing a duty and not a prerogative. The court must declare void the acts "contrary to the manifest tenor of the Constitution." The word manifest does work. Hamilton does not say acts that the judges find unwise, or contrary to the judges' reading of the spirit of the age. He says the acts that plainly contradict the text.

Test. The dispute over what counts as "manifest" is as old as judicial review. The strongest conservative reading of Hamilton is that the standard remains plain contradiction with the text, and a judge who cannot point to the text has no business striking down a law. That is the standard defended in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.

Passage three: the courts as an intermediate body

Hamilton anticipates the objection that this makes courts superior to legislatures. "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." And then the key distinction: "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."

The courts, he adds, are "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, he says, "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."

What it meant then. A legislature is the agent of the people, and an agent may not exceed the authority of the principal. The people's will, expressed in the Constitution, outranks the legislature's will, expressed in a statute. The court is not choosing between two equal powers. It is applying the commands of the superior master.

What it means now. Marshall's reasoning in Marbury v. Madison (1803) tracks this paragraph closely, which is why it is fair to call Federalist 78 the intellectual source of judicial review; see Marshall Gave Up William Marbury's Commission to Win the Bigger Argument. Notice, though, the careful phrase "ought to be governed." A judge's loyalty is to the Constitution, not to his own sense of the people's will. That distinction matters when judges claim to speak for evolving public values. The people have already spoken, in the text, and the judge's job is to read it.

Test. The intermediate-body idea has held up in structure. It has not always held up in practice, because when the Court claims the final word on constitutional meaning, it ceases to be an intermediate body and becomes the sovereign interpreter. That slide is the subject of Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not.

Passage four: judgment versus will

Here is the sentence that serves as the moral core of the essay: "If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

And then, the warning that every citizen should keep in mind: "It can be of no weight to say that the courts, on the pretence 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."

What it meant then. Hamilton knew the risk. A judge with life tenure could abuse it. His defense is to define the judge's job narrowly: declare the sense of the law, not the judge's pleasure. If the courts ever exercise will, the whole justification for their independence collapses.

What it means now. This is the test the essay sets for every judge. Is he applying judgment, in the sense of discovering and applying what the law says, or will, in the sense of choosing the result he prefers? The test is sometimes hard to apply, and reasonable people disagree about particular cases. The standard is clear, and it is a conservative one. For the contest over how to meet it in practice, see Textualism and Originalism Are Cousins, Not Twins, and the Difference Matters.

Test. Hamilton's warning has been vindicated in both directions. Critics of the Court on the right point to decisions they regard as will: Roe v. Wade, for example, as discussed in Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result. Critics on the left point to other decisions in the same way. The fact that each side can cite examples of will on the other side shows the standard is real, and that it is being invoked by people who take it seriously.

Passage five: strict rules and precedents

Hamilton adds a point about method that modern readers often miss: "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." He acknowledges that this requires learning, and that "the records of those precedents must unavoidably swell to a very considerable bulk," so that only a few will have the knowledge and ability to serve as judges.

What it meant then. The judges' discretion is to be bound by established legal rules. He was not defending a free-wheeling court. He was defending a court that follows the law as it exists, with precedent as a constraint.

What it means now. Precedent matters, which is why the factors for overruling it are taken seriously; see Stare Decisis Explained, and the Factors Justices Weigh Before Overruling. But note that Hamilton's phrase ties precedent to duty, not to the convenience of past judges. A precedent that conflicts with the text raises a hard question that Hamilton did not answer, and that is why careful judges differ about when to overrule.

Federalist 79 to 81: pay, impeachment and appellate jurisdiction

Hamilton did not stop at 78. The next essays complete the picture.

Federalist 79, on pay. "In the general course of human nature, a power over a man's subsistence amounts to a power over his will." That is the justification for the Compensation Clause in Article III, which provides that judges' pay "shall not be diminished during their Continuance in Office." If Congress could cut a judge's salary after a ruling it disliked, the judge would think twice before ruling. Hamilton also discusses the removal of judges: they are liable to be impeached for malconduct by the House and tried by the Senate. The remedy for a bad judge is the process that applies to a bad President: the House impeaches, the Senate tries. The early test came in 1804 and 1805, when the House impeached Justice Samuel Chase over his conduct on the bench and the Senate acquitted him; see Samuel Chase's 1805 Impeachment and Why Judges Are Not Removed for Their Rulings. The lesson was that impeachment is for misconduct and not for rulings, and Hamilton's design has largely held.

Federalist 80, on the reach of the judicial power. Hamilton explains that the courts should hear the cases in which the national government has an interest in uniform interpretation of national law, and cases between states and between citizens of different states, where a neutral tribunal is needed.

Federalist 81, on appellate jurisdiction. The Constitution gives the Supreme Court appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make." Hamilton notes that Congress may modify the Court's appellate jurisdiction in the way that best serves public justice. For the surprising history of that power, see The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses.

Test these three against practice. The pay clause, the impeachment power and the Exceptions Clause all remain in the Constitution, and the acquittal of Chase suggests that impeachment was not made a weapon against a judge's rulings. The structure Hamilton described is still standing.

Was Hamilton right?

Let me give the verdict in the form of a ledger.

1. Right about the Court's formal weakness. It has no army and no purse, and its authority depends on the others. This has held every time the Court has been pressed, and the Little Rock episode confirms it.
2. Right about judicial review's logic. A limited constitution requires someone to enforce its limits. The argument has not been successfully refuted in over two centuries.
3. Right about the importance of independence. Life tenure and protected pay are still in the Constitution, and they protect judges from retaliation in the way Hamilton intended.
4. Half-wrong about the danger. The courts have, in the last century, become far more consequential than Hamilton foresaw, because they have taken up questions of social policy that the text does not obviously address. When courts decide whether a particular medical procedure is a constitutional right, or how a school must be governed, the word "least" does not fit. His claim was conditional: the courts are least dangerous if they exercise judgment, not will. Where they have exercised will, they have been dangerous, and the failure belongs to the judges and not to Hamilton.
5. Right about the remedy. The cure for a court exercising will is not abolishing the court but holding it to the standard Hamilton set, through appointments, through Congress's powers over the courts, through impeachment for misconduct and through amendment.

Hamilton wrote that the judiciary would be least dangerous. The more useful reading is that the judiciary is least dangerous when it does its job. The standard is the one he set: neither force nor will, but merely judgment. It is the measure by which judges should be assessed, and it is one the people have every right to apply.

The case in brief

1. Federalist 78 argues that courts are the weakest branch, with neither the sword nor the purse, and that their only power is judgment applied to the law.
2. A limited constitution can be enforced only by courts that declare acts contrary to its manifest tenor void, which is the logic Marshall used in Marbury.
3. The courts are an intermediate body between the people and the legislature, loyal to the Constitution, the people's superior will, not to their own preferences.
4. Hamilton's own warning is that if judges exercise will instead of judgment, the whole case for their independence falls, and Federalists 79 to 81 supply the checks on pay, impeachment and appellate jurisdiction.
5. Two centuries later he was right about the structure and the logic, and the danger has come only where judges have strayed from the standard he set.

What you can do: read Federalist 78 in full on the Library of Congress's website or in any printing of the Federalist, and use its "judgment, not will" test the next time you read about a Supreme Court decision.