In Essay #78,The Judiciary Department, Alexander Hamilton extends his arguments for constitutional ratification by addressing the purpose and powers of the Judiciary including life appointments.
It must be pointed out the Constitution does not explicitly give the Supreme Court the power to declare a law enacted by Congress and signed by the President as unconstitutional, i.e., judicial review. However, that power is INFERRED from the structure, provisions and history of the Constitution.
The power to declare a law as unconstitutional was set by precedent in the 1803 case of Marbury vs Madison.
Hamilton argues that the courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of their representatives.
Hamilton, again, is eloquent in how he describes the relationship between the three governmental branches:
“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.
- 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.”
Credit for the summary and analysis of Essay #78 is given to Brittany Nelson and Christopher Higgins (second revision 09/15/2011). Weinbloom, Elizabeth ed. “The Federalist Papers Essay #78 Summary and Analysis”. GradeSaver, 30 December 2011 Web. 19 February 2019.