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“Federalist 78: Foundation for Marbury v. Madison”

The Federalist Papers, it has been said, constitute one of the most important works in the world of political science ever written in the history of the United States. There is little exaggeration, if any, in saying that that The Federalist is surpassed only by the Constitution and the Declaration of Independence as an iconic writing in our nation’s political history.

Authored by James Madison, Alexander Hamilton and John Jay, the 85 essays thoroughly explained the meaning of the Constitution proposed to Americans eager to know what delegates to the Constitutional Convention had produced in Philadelphia as a new national charter. The Federalist writings thus represented the matured conclusions of the framers of the Constitution.

Federalist 78, written by Hamilton, stands as one of the most penetrating essays of the entire lot. It leaves no doubt that the framers intended the federal judiciary to exercise the power of judicial review and pours the foundation for Chief Justice John Marshall’s defense of it in the landmark case of Marbury v. Madison.

Hamilton’s tightly knit paper represented a powerful response to critics of judicial review including, mostly prominently, New York’s Robert Yates, writing under the pen name, “Brutus.” The Brutus-Hamilton exchange furnished informed delegates to the various state ratifying conventions with powerful confirmation that the Constitution did, indeed, boast the power of judicial review.

First and foremost, the fact that Yates, a delegate to the Convention, and a justice of the New York Supreme Court, wrote critically of the power of judicial review and warned of its abuses, confirmed the existence of judicial review. In his “Letters of Brutus,” Yates opposed judicial review, in part, because it would “operate to a total subversion of the state judiciaries, if not to the legislative authority of the states,” and because of the difficulty of removing federal judges from the bench through the power of impeachment.

Yates lamented the placement of the reviewing power in the hands of federal judges, including Supreme Court Justices. “They are,” he wrote, “authorized by the Constitution to decide in the last resort what is the extent of the powers of Congress.” He added, “If, therefore, the legislature pass any laws inconsistent with the sense the judges put on the Constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.” Yates’s greatest fear was that judges would impose their own biases, political and otherwise, in the interpretation of the Constitution.

Yates’s confirmation of the availability of judicial review spared Hamilton from widespread accusations that the authority was his creation alone. However, Yates’s attack on the exercise of judicial power, the possibility that it would be exercised arbitrarily, left Hamilton with the heavy burden of persuading readers that judges would not abuse their authority, and the lighter responsibility of explaining the theoretical implications of judicial review.

Hamilton famously wrote of the exercise of judicial power that judges have neither the power of the purse nor the power of the sword, leaving the judiciary in the dreaded position of being the “least dangerous branch” of government.” As Hamilton observed, judges have the duty to give voice to the terms and commands of the Constitution. Judges, he cautioned, would not behave like legislators and give voice to their own preferences and biases. His critics could be forgiven for recalling that Hamilton, in 1778, had warned of the “trackless imaginations of judges” and their frequent abuses of power. For his part, Hamilton was complaining about English, not American, judges. Critics asked, however, if the differences were so great?

Students of the Constitution are indebted to Hamilton’s scholarly explanation in Federalist 78 of the ways and means of the exercise of judicial review and his effective rebuttal of Yates’s claim that its availability renders judges superior to the legislature.

Hamilton denied that the act of declaring a statute unconstitutional on grounds that it violated the Constitution established judicial supremacy. The ratification of the Constitution represents the will of the people, he explained, as does the passage of a statute by the representatives of the people. However, the approval of the Constitution represents a “higher” expression of the will of the people. Simply put, when the people ratify the Constitution, it is approving the content of a document that is clear and comprehensible to them. The expression of that will is grounded in greater certainty, and yielding more clarity, than that represented in a vote for legislators who, at the time of their election, have not made clear where they stand on issues that have yet to emerge and bills yet to be written.

When the Court, as explained in No.78, exercises judicial review and holds a legislative measure unconstitutional, it is not asserting judicial superiority over the legislature. Rather, it is simply upholding the superior expression of the will of the people, as reflected in the ratification of the Constitution, over the inferior expression of the will of the people seen in the election of representatives. As Hamilton observes, the Court is upholding “the intention of the people to the intention of their agents.”

In Federalist No. 78, Hamilton reproduced the conclusions of those who wrote the Constitution. The founders intended the federal courts to exercise the power of judicial review, which was first announced in Marbury v. Madison in 1803. But Hamilton’s reply to Brutus that judges would not, in the course of constitutional interpretation, impose their own political preferences and biases, remains the subject of ongoing debate, one heightened in our time by cases that raise the prospect of judicial revision of constitutional principles and precedents.

David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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