Name:

Course:

Institution:

Date of submission:

A Review of No. 78 Hamilton

Alexander Hamilton sought to explain the powers and duties of the American judiciary department as proposed in the Article III of the Federal Constitution. Hamilton through the Federalist paper 78 sought to highlight what the Constitution had in mind about the composition of the federal courts. Through the Federalist paper 78, Hamilton was explaining to the American citizens that the judiciary had its role to play and would not end up going out of control in execution of its mandate. He did this by explaining to the public that the powers of the judiciary would have checks and balances to ensure that they play a leading role in the running of the constitutional government.

In the Federalist paper No. 78 commonly known as No. 78 Hamilton, Hamilton presents two major arguments about the proposed Judiciary structure. The first argument about the structure of the judiciary is to guarantee its autonomy from other arms of the government, legislature and the executive. In arguing the need for an independent judiciary, Hamilton concluded that there was the need for the strengthening of the Judiciary to ensure it is independent. He proposed that the judiciary should be provided with more power that can enable it to oversee the functioning of the legislature. It should be empowered to ensure that it could have powers to declare laws passed by Congress as null and void if it deems them ‘contrary to the manifest tenor of the American constitution.’

In the Federalist paper No. 78, Hamilton suggested the need to empower the judiciary so it would protect the rights and privileges of the citizens. Hamilton argued that the main function of a judiciary in a democratic country is to protection of the rights and privileges of citizens as outlined in the Constitution. In advancing the argument on how the judiciary will ensure the protection of the rights and privileges of citizens, he wanted the judiciary to have powers to review laws. He argued that powers of Judicial Review would ensure that the courts can be able to critically analyze laws passed by the Congress and declare those that are unconstitutional null and void. In responding to those who criticized the need for the judiciary to have Judicial Review powers, Hamilton argued that the role of the judiciary is to ensure that Congress is a servant of the American constitution and the citizens.

The term ‘Judicial Review’ is not mentioned in the American constitution though it got it legitimacy from a Supreme Court ruling in 1803. In the case of Marbury v. Madison, 5 U.S (1 Cranch) 137, 2 L. Ed. 60, the American Supreme Court declared an act of Congress null and void. This ruling by the Supreme Court in 1803 has been used in many cases by the courts to give judicial review legitimacy. Critics have been quick to term the judicial review powers as ‘judicial activism’ arguing that the judiciary has been used in overturning Acts of Congress without the due process being followed.

I think the most important part of the ‘Federalist paper No. 78’ is where it states that, ‘the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.’ This statement emphasizes the supremacy of the Constitution over the acts of Congress or any other statutes. It also acknowledges the supremacy of the citizens over their elected representatives in the Congress. This provision ensures that in its conduct, the judiciary should always uphold the supremacy of the Constitution over other statutes. It also reminds the judicial officers that, the citizens’ will always prevails over that of their elected representatives.