Neither Force Nor Will, Hamilton's Federalist 78 Read Line by Line

Imagine a job description that reads: no army, no budget, no power to start anything, and you must wait for strangers to bring you their quarrels. Now imagine it is the most powerful job in American public life. Somewhere between the description and the reality, something happened, and the best way to find out what is to read the original job posting.

That posting is Federalist 78, written by Alexander Hamilton under the pen name Publius and published in 1788 as New York debated ratification. Courts cite it constantly, and quote it out of context nearly as often. Judges quote its defense of judicial review. They quote much less often its warning about what happens when judges exercise will instead of judgment. So let's read it the way it was written: in order, passage by passage, with Hamilton's own words.

The setting: a defense of a branch nobody feared yet

Federalist 78 opens the series of papers on the judiciary. Hamilton announces that he will consider the mode of appointing judges, their tenure, the partition of judicial authority among courts, and their relations to one another. The appointment question, he says, was handled in earlier papers on the executive. So 78 is mostly about one thing: tenure. Why should federal judges hold their offices "during good behavior," which in practice means for life?

His answer runs through three steps. First, the judiciary is the weakest branch. Second, the weakest branch needs permanent tenure to stand up to the other two. Third, its job of declaring unconstitutional laws void requires exactly that independence. Each step carries a limit inside it, and the limits are the part of the paper that deserves the closest reading.

Passage one: good behavior as a barrier

Hamilton begins with praise for the tenure rule itself:

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.

What it meant then. Americans of 1788 knew the history. English judges once served at the Crown's pleasure; the Act of Settlement of 1701 gave them tenure during good behavior. The Declaration of Independence had accused George III of making colonial judges "dependent on his Will alone, for the tenure of their offices." Tenure was a liberty, won against kings.

The turn. Notice the second half. Hamilton does not say the danger in a republic comes from a prince. He says it comes from "the representative body." The Framers had watched state legislatures in the 1780s pass debtor-relief laws, paper-money schemes and laws that interfered with court judgments. The threat to settled law in a republic was a legislature carried by a passing majority. Independent judges were a barrier against that.

What it means now. Tenure protects a judge so that the judge can protect the law. It is not a personal reward. A judge who treats life tenure as a license has misread the reason for it.

Passage two: the least dangerous branch

Now the most famous lines:

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.

And then the anatomy:

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.

Read the capitals. Hamilton printed FORCE and WILL in emphasis because the whole argument depends on them. The executive has force. The legislature has will: it decides what the rules shall be. The judiciary has neither. It has "merely judgment."

This is a description, but it is also a definition. A court that decides what the rules should be, rather than what they are, is exercising will. Hamilton's argument for its harmlessness depends on its not doing that. The day a court begins to legislate, it stops being the least dangerous branch by Hamilton's own logic, because it has picked up one of the two powers he said it lacked. We develop the point further in Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?.

Hamilton adds a line borrowed from Montesquieu, which he quotes: "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Separation runs in both directions. The legislature must not judge. Judges must not legislate. Madison made the same point about the accumulation of powers in Federalist 47, which we read in Federalist 47 Defines Tyranny as All Powers Gathered Into the Same Hands.

Passage three: a limited Constitution needs courts

Hamilton next explains why judges must be independent, and here he makes the case for judicial review:

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.

Three words deserve underlining.

1. "Limited." The Constitution is a list of granted powers with specific prohibitions. Judicial review exists to police the limits, not to invent new rights or new powers.
2. "Duty." Declaring an unconstitutional act void is not a power the judge chooses to wield. It is an obligation the judge cannot avoid when a case presents the conflict.
3. "Manifest tenor." The conflict must be plain. Hamilton is not describing a judge who strikes down laws because a clause might be read against them by an inventive mind. He is describing a law that collides with the text.

Fifteen years later, Chief Justice John Marshall would make the same argument in Marbury v. Madison (1803), as we discuss in Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

Passage four: the people above both

Hamilton anticipated the objection that judicial review makes judges superior to the legislature. His answer is the heart of the paper:

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.

And:

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.

This is the most important sentence in Federalist 78 for anyone trying to judge a judge. Judicial review is legitimate only because the Constitution is the people's act, adopted through ratification, and a statute is merely the act of their agents. A judge who enforces the Constitution against a statute is enforcing the people's higher command against their servants.

Follow the logic one step further. If the authority of a judge comes from enforcing the people's Constitution, then a judge who enforces something other than the people's Constitution, a theory, a trend, a personal sense of justice, has no authority at all. The justification evaporates the moment the text is replaced by the judge's preferences. Hamilton built judicial review on a foundation that only holds if judges stay on it.

Passage five: the fundamental law and the order of laws

Hamilton then explains how a judge should handle a conflict:

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.

He compares the problem to an ordinary one. When two statutes conflict, courts usually prefer the later one, because the later act expresses the legislature's latest intention. But when a statute conflicts with the Constitution, the rule reverses: the prior act of a superior authority prevails over the later act of an inferior one. The Constitution outranks the statute because the people outrank Congress.

There is a modest phrase in that passage that deserves attention: "ascertain its meaning." To ascertain is to find out what is already there. It is not to supply, update or improve. Hamilton's verb is an originalist's verb, two centuries before anyone used the word. We take up that connection in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.

Passage six: the warning everyone skips

Now the paragraph that ought to be framed in every judge's chambers:

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.

And then:

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.

Hamilton was answering critics who said judges would abuse the power. His answer was candid. Yes, they could. A court that exercises will instead of judgment substitutes its pleasure for the legislature's. That is not an argument against judicial review, he says, because the same objection would prove that there should be no judges at all. But it is a confession of where the danger lies.

Notice the capitals again. WILL instead of JUDGMENT. The whole paper turns on the difference. The standard is not whether a judge reaches outcomes we like. The standard is whether the judge is declaring "the sense of the law" or imposing "their pleasure."

Apply it to a hard case. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney declared that Congress could not bar slavery from the federal territories and that Black Americans could not be citizens. He reached that result by reading into the Fifth Amendment's Due Process Clause a protection for property in slaves that no part of the text supplied. That was will dressed as judgment, and it helped bring on a war. We draw the lesson in Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read. A century and more later, Dobbs v. Jackson Women's Health Organization (2022) overruled Roe v. Wade on the ground that Roe had no footing in the Constitution's text, history or tradition. Whatever one thinks of the policy, that holding is an act of judgment returning a question of will to the people's representatives.

Passage seven: precedent, restraint and the long view

Hamilton closes the main argument with two more points that are rarely quoted together.

First, discipline:

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.

"Bound down" is a strong phrase. Hamilton expected judges to be constrained by rules and precedents, not liberated by them. Stare decisis, in this view, is a fence around the judge. That cuts against judicial adventurism, and it also explains why overruling a precedent requires real justification, a subject we cover in Stare Decisis Explained, and the Factors Justices Weigh Before Overruling.

Second, temperament. Hamilton argued that permanent tenure would draw into the courts men of long study in the law, because few would master the "voluminous code" of precedents, and fewer still would combine that learning with integrity. Periodic appointments, he warned, would be fatal to judicial independence, because a judge who must seek reappointment will look over his shoulder at whoever does the reappointing.

The strongest objection, and the answer

The objection. Hamilton was naive. He called the judiciary the least dangerous branch, but the modern Supreme Court decides questions of abortion, marriage, religion, guns, elections and the scope of federal agencies. A branch that settles the nation's deepest moral and political questions is not weak. Federalist 78 is a beautiful theory that history has refuted, and its "neither force nor will" line is a fig leaf for judicial power.

The answer.

1. The paper anticipated the danger. Hamilton explicitly described judges substituting their pleasure for the legislature's. He did not deny it could happen. He defined it as a betrayal of the judicial office. A standard is not refuted because people violate it.
2. The weakness is structural, and still true. Courts still have no army and no appropriation. When they keep to judgment, the other branches and the people accept their rulings because the rulings rest on the people's own Constitution. Their power is borrowed legitimacy, and it shrinks when it is abused.
3. The remedy follows from the standard. If Hamilton is right that judicial authority comes from the people's superior law, then the cure for judicial overreach is a judiciary that reads that law faithfully, a Senate that confirms judges for their method rather than their predicted votes, and a people who know the difference.
4. The Anti-Federalists made the objection first. The writer known as Brutus warned in 1788 that federal judges would read the Constitution by its spirit and expand national power. Federalist 78 and 81 were partly Hamilton's answer. We weigh that exchange in Brutus Warned in 1788 That Unelected Judges Would Swallow the States.

The verdict: Federalist 78 is not a description of what courts always are. It is a measuring stick for what they must be. Use it.

The case in brief

1. Federalist 78 defends life tenure so judges can resist a legislature carried by passing majorities, not so they can rule as they please.
2. The judiciary is "least dangerous" only because it has "neither FORCE nor WILL, but merely judgment"; a court that legislates has given up that defense.
3. Judicial review rests on the people's Constitution being superior to their agents' statutes, so it is legitimate only when judges enforce the text.
4. Hamilton warned in plain words against courts exercising WILL instead of JUDGMENT and said judges must be "bound down by strict rules and precedents."
5. The paper is a standard, and every judge, nominee and senator can be measured against it.

What you can do: read Federalist 78 in full this week, then use our courts page to read one recent Supreme Court opinion and ask yourself, passage by passage, whether it shows judgment or will.