The Federalist Papers

The Federalist Papers Summary and Analysis of Essay 81


Hamilton describes the separation of judicial authority among the different types of courts and the relationship between these courts. The part of the Constitution in question is Article 3, Section 1, which states, “The judicial power of the United States is to be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.”

Hamilton begins this paper by summarizing the anti-federalist critique of this constitutional provision. The anti-federalists feared that the supreme court would have the power to interpret laws passed by congress according to the “spirit” of the constitution. This would then lead to the court being able to “mould” laws passed by congress “into whatever shape it may think proper.” Such a power would make the Supreme Court superior to the national legislature.

However, Hamilton argues that “there is not a syllable in the plan, which directly empowers the national courts to construe the laws according to the spirit of the constitution.” That is, the federal courts will not have unlimited power to interpret laws as they see fit. Hamilton suggests further that the American people need not be concerned about the Supreme Court being separate from the legislature. He argues that the legislature, which makes the laws, cannot be trusted to interpret the laws impartially: “From a body which had had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application.” Furthermore, legislators are unlikely to have the same level of legal expertise as a distinct body of magistrates would. Finally, the legislature is liable to be divided by political factions, making it even less likely that it will act impartially in deciding legal matters.

Hamilton argues further that the judiciary is a relatively weak branch of government and therefore poses very little threat to liberty. Unlike the other branches of government, the judiciary cannot “support its usurpations by force.” All it can do is declare its judgment. Plus, the judges are themselves personally subject to impeachment and removal from office by the legislature.

Hamilton then discusses the creation of inferior federal courts. It had been objected that state courts could perform this function; however, Hamilton contends that “a local spirit” may bias the opinions of state judges.

Hamilton also clarifies which cases will fall under the Supreme Court's “original jurisdiction,” i.e. the cases that must go directly to the Supreme Court to be decided. Such cases are limited to those “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Thus, in most instances, the Supreme Court will only be a court of appeals.

Finally, Hamilton addresses concerns that the Supreme Court’s role as an appellate court will abolish the trial by jury. It had been feared that if the Supreme Court could hear appeals and base its decisions on the facts of the case, instead of just legal theory, then trial juries would essentially become powerless.


This paper illuminates an interesting debate over the separation of powers. The anti-federalists were animated in large part by the fear that the proposed constitution would lead to the creation of an overly powerful central government that could eventually develop into a tyranny. The anti-federalists generally argued in favor of relatively strong state governments and a relatively weak federal government. One of the founders’ strategies for addressing this concern of an overly powerful national government was the principle of separation of powers. In this paper, Hamilton discusses the importance of having a distinct federal court system completely independent of the legislature. This would allow for impartiality in the judicial system. However, the anti-federalists wanted the legislature to have judicial authority since the legislature would be composed of the direct representatives of the people and thus less likely to be tyrannical. However, Hamilton argues that if the judicial branch and legislative branch were combined, there would be a greater chance of bias and injustice.

Interestingly, the anti-federalists felt that the separation of powers in this particular case was a threat to liberty. They wanted the legislature to be supreme in all matters, including judicial ones. Whereas previously the anti-federalists had been concerned about an overly powerful national legislature, they argue in this case that the legislature is too weak. However, for Hamilton, the fundamental point is that the people who make the law cannot also be trusted to always apply the law impartially. If, for example, a particular law were unconstitutional, it could only be struck down if the same entity that passed the law admitted that it had made a grave error.