Federalist No. 78

Federalist No. 78

Alexander Hamilton, author of Federalist No. 78
Author	Alexander Hamilton
Original title	The Judiciary Department
Language	English
Publisher	The Independent Journal, New York Packet, The Daily Advertiser
Publication date	May 28, 1788
Publication place	United States
Media type	Newspaper
Preceded by	Federalist No. 77
Followed by	Federalist No. 79

Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of The Federalist Papers. Like all of The Federalist papers, it was published under the pseudonym Publius.

Titled "The Judiciary Department", Federalist No. 78 was published May 28, 1788, and first appeared in a newspaper on June 14 of the same year. It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the first of six essays by Hamilton on this issue. In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life.

The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by U.S. jurists, but are not law. Of all the essays, No. 78 is the most cited by the justices of the United States Supreme Court.^[1]

Federalist No. 78 quotes Montesquieu: "Of the three powers [...], the judiciary is next to nothing." There was little concern that the judiciary might be able to overpower the political branches; since Congress controlled the flow of money and the President the military, courts did not have nearly the same power from a constitutional design standpoint. The Judiciary would depend on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. ^[2]

Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the job of determining whether acts of Congress are constitutional and what must be done if the government is faced with the things that are done on the contrary of the Constitution.