The Federalist Papers Study Guide

Summary and Analysis of Essay 79

Summary:

Hamilton continues where he left off, claiming that next to permanency in office "nothing can contribute more to independence of the judges than a fixed provision of support." Hamilton argues that a power over a man's living, is a power over his will, and therefore by removing this temptation, you once again strengthen the power of the judiciary. You cannot let the judiciary depend on the legislature for pensions because that destroys the separation between the two branches.

The Constitution proves that judges of the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." This is important for two reasons ­ while the legislature is able to increase the amount of money at times (because of inflation) but cannot decrease the money, and therefore, does not have power to influence a judge and the separation of powers remains rigid.

The other important aspect of the judicial system is the "want of removing a judge." Hamilton believes, however, that more damage is done to liberty when you try to draw a line between inability and ability than when judges can be removed more easily. Age is also a silly consideration, because who can say when someone can no longer facilitate and learning the laws of the land is a difficult and life-long task.

Analysis:

While Hamilton mentions many of the strengths of the judiciary in this short Federalist Paper, many of the strengths of the judiciary process under the Constitution are implied and not as explicit as Hamilton laid out in this essay. Like the amending process, judicial review can adjust the Constitution to new conditions. Although the Federalist does not make a direct statement on that function of the judges, such a function can be concluded from other remarks.

The Constitution is, according to the authors, supposed to last for generations. Consequently the judges, being the "guardians of the Constitution," will have to interpret the law with a view to preserving it. This means that they will have to interpret it in a manner that takes into account changed conditions that might exist in new environments and times. Chief Justice Marshall's later dictum, "We must never forget, that it is a constitution we are expounding, . .. a constitution intended to endure for ages to come, and , consequently, to be adopted to the various crises of human affairs," largely judicial guardianship of the Constitution by means of adjustment, as suggested in The Federalist Papers.

The supremacy of the Constitution over the people furnishes us with an indication of the importance of the judiciary. As the natural ­ and only ­ interpreters of the law, the judges, while being bound by the Constitution, are not bound by the will of the people, unless that will has become part of the Constitution. They thereby occupy that peculiar position assigned to them in the Federalist, being, of all people, closest to the Constitution and its revelations of justice. The judges, being bound by the constitution, are, thereby, also bound by certain principles of higher law of which the Constitution is a reflection. For the Federalist indicates that the Constitution is not only the source, but also the recipient of superior law: although Hamilton says that "by a limited constitution, I understand one which contains certain specific exceptions to the legislative authority," his use of the term "limited" instead of "limiting" suggests also that the Constitution itself is limited by certain principles that secure the protection of the states and the rights of the individual, and that constitutional restrictions upon the legislative and amending power are only expressions of those higher law principles that rule the Constitution. The judges thus are the guardians not only of the letter but also of the spirit of the Constitution. This makes them truly platonic guardians who, while not being unwilling to take into account new conditions that may arise in the course of time, guarantee the preservation of the values of the Constitution and thus secure justice, which is refereed to in the Federalist as the end of government.