ANALYTICAL READING

ACTIVITIES TOPIC 2.8

AP United States
Government and
Politics
AP U.S. Government and Politics Analytical Reading Activities

Topic 2.8: The Judicial Branch

Required Document: Excerpts
Source Analysis from The Federalist No. 78:
The Judiciary Department by
Alexander Hamilton
Before You Read
Paired with: Excerpts from
By now, you have learned about the different views on government as Brutus No. 15, March 20,
represented by the Federalist and Anti-Federalist groups. As you prepare to read 1788
these documents that show the different opinions on the judiciary, use the
table below to recall what you know about the differences and reflect on the
reasons and significance of these differences on the formation of our Related Concepts:
government.
Debate over the
Constitution
Separation of Powers

What was the Checks and Balances

Federalist view of
Supreme Court Role of
government?
the Court
Judicial Review
Judicial Behavior

Comparison
What was the Anti-
Explain the reasons for
Federalist view of
government? similarities and/or
differences; explain the
relevance, implications, or
significance of similarities
and/or differences.

Why did the Source Analysis

Federalists and Anti-
Federalists have Explain how the implications
different viewpoints? of the author’s argument
or perspective may
affect political principles,
institutions, processes,
policies, and behaviors.

How is each side’s

viewpoint reflected
in our political
institutions today?

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AP U.S. Government and Politics Analytical Reading Activities

The Federalist No. 78

As you read the text, consider how Hamilton’s essay relates to our system of
separation of powers and checks and balances. Also consider how he argues that
a strong, independent judiciary is also essential to the protection of the
people’s liberties.

Federalist No. 78: The Judiciary Department

Author: Alexander Hamilton

To the People of the State of New York:

WE PROCEED now to an examination of the judiciary department of the

proposed government.
In unfolding the defects of the existing Confederation, the utility and necessity of Check Your Understanding
a federal judicature have been clearly pointed out. It is the less Paraphrase Hamilton’s purpose and
necessary to recapitulate the considerations there urged, as the propriety of the focus for this essay (as outlined in the
institution in the abstract is not disputed; the only questions which have been opening paragraph) in the space below
raised being relative to the manner of constituting it, and to its extent. To these that paragraph.
points, therefore, our observations shall be confined. …

According to the plan of the convention, all judges who may be appointed Check Your Understanding
by the United States are to hold their offices DURING GOOD BEHAVIOR; What does Hamilton mean when he
which is conformable to the most approved of the State constitutions and among the says “good behavior”?
rest, to that of this State. Its propriety having been drawn into question by the
adversaries of that plan, is no light symptom of the rage for objection, which
disorders their imaginations and judgments.

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AP U.S. Government and Politics Analytical Reading Activities

The standard of good behavior for the continuance in office of the Source Analysis
judicial magistracy, is certainly one of the most valuable of the modern According to Hamilton’s argument,
improvements in the practice of government. In a monarchy it is an excellent why does lifetime appointment secure
barrier to the despotism of the prince; in a republic it is a no less excellent barrier an “impartial administration of the
to the encroachments and oppressions of the representative body. And it is the laws”?
best expedient which can be devised in any government, to secure a steady,
upright, and impartial administration of the laws.

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. Check Your Understanding
The legislature not only commands the purse, but prescribes the rules by which the
What does Hamilton mean by the
duties and rights of every citizen are to be regulated. The judiciary, on the
power of the “sword” and the power
contrary, has no influence over either the sword or the purse; no direction of the “purse”?
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.

Connect to Content
Hamilton claims the judiciary has
no influence over either “sword” or
“purse.” Write a claim explaining
whether there is any way in which
the judiciary could potentially
influence the “sword” or the
“purse.”

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AP U.S. Government and Politics Analytical Reading Activities

This simple view of the matter suggests several important consequences. It proves Source Analysis
incontestably, that the judiciary is beyond comparison the weakest Highlight or underline why, according
of the three departments of power; that it can never attack with success either of the to Hamilton’s argument,
other two; and that all possible care is requisite to enable it to defend itself against is it important to give the judiciary
their attacks. some protections against the other two
departments or branches.

It equally proves, that though individual oppression may now and then
proceed from the courts of justice, the general liberty of the people can
never be endangered from that quarter; I mean so long as the judiciary
remains truly distinct from both the legislature and the Executive. For I
agree, that “there is no liberty, if the power of judging be not separated from
the legislative and executive powers.”*
*Quote from French political philosopher, Montesquieu

Source Analysis
And it proves, in the last place, that as liberty can have nothing to fear from the According to Hamilton’s argument,
judiciary alone, but would have every thing to fear from its union with either how is liberty secured by the
of the other departments; that as all the effects of such a union must ensue separation of powers? Why might this
from a dependence of the former on the latter, notwithstanding a nominal and not work?
apparent separation; that as, from the natural feebleness of the judiciary, it is in
continual jeopardy of being overpowered, awed, or influenced by its co-
ordinate branches;

Check Your Understanding

and that as nothing can contribute so much to its firmness and
According to Hamilton, how does
independence as permanency in office, this quality may therefore be justly lifetime tenure or “permanency in
regarded as an indispensable ingredient in its constitution, and, in a great office” of judges and justices help
measure, as the citadel of the public justice and the public security. to secure justice?

Check Your Understanding

The complete independence of the courts of justice is peculiarly essential
in a limited Constitution. By a limited Constitution, I understand one which Highlight or underline Hamilton’s
contains certain specified exceptions to the legislative authority; such, for definition of a “limited
Constitution.”
instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.

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AP U.S. Government and Politics Analytical Reading Activities

Limitations of this kind can be preserved in practice no other way than through Source Analysis
the medium of courts of justice, whose duty it must be to declare According to Hamilton’s argument,
all acts contrary to the manifest tenor of the Constitution void. Without this, all the what is the duty of the courts in a
reservations of particular rights or privileges would amount to nothing. limited Constitution and how might
that duty be impaired?

Some perplexity respecting the rights of the courts to pronounce legislative acts Source Analysis
void, because contrary to the Constitution, has arisen from an Underline the assumption of the
imagination that the doctrine would imply a superiority of the judiciary to Anti-Federalists that Hamilton is
the legislative power. It is urged that the authority which can declare the acts of addressing here.
another void, must necessarily be superior to the one whose acts may be declared
void. As this doctrine is of great importance in all the American constitutions, a
brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a Source Analysis
delegated authority, contrary to the tenor of the commission under which it is Based on Hamilton’s argument, what
exercised, is void. No legislative act, therefore, contrary to the would be the danger of allowing
Constitution, can be valid. To deny this, would be to affirm, that the deputy Congress to determine the
is greater than his principal; that the servant is above his master; that the constitutionality of their acts? How
representatives of the people are superior to the people themselves; that men does this further develop his
counterargument to critics of judicial
acting by virtue of powers, may do not only what their powers do not authorize,
review?
but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of
their own powers, and that the construction they put upon them is conclusive
upon the other departments, it may be answered, that this cannot be the natural
presumption, where it is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the Constitution could intend to
enable the representatives of the people to substitute their WILL to that of their
constituents.

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AP U.S. History Analytical Reading Activities

Source Analysis
It is far more rational to suppose, that the courts were designed to be an
How does Hamilton further define
intermediate body between the people and the legislature, in order, among other
the role of the courts? What line of
things, to keep the latter within the limits assigned to their authority. The
reasoning does he employ here to
interpretation of the laws is the proper and peculiar province of the courts. A support his claim?
constitution is, in fact, and must be regarded by the judges, as a fundamental
law. It therefore belongs to them to ascertain its meaning, as well as the meaning of
any particular act proceeding from the legislative body. If there should happen to be
an irreconcilable variance between the two, that which has the superior obligation
and validity ought, of course, to be preferred; or, in other words, the Constitution
ought to be preferred to the statute, the intention of the people to the intention of
their agents.

Nor does this conclusion by any means suppose a superiority of the judicial Check Your Understanding
to the legislative power. It only supposes that the power of the people is superior to In the space below the paragraph,
both; and that where the will of the legislature, declared in summarize how Hamilton refutes
its statutes, stands in opposition to that of the people, declared in the Constitution, the critique that the power of
the judges ought to be governed by the latter rather than the judicial review would make the
former. They ought to regulate their decisions by the fundamental laws, rather Court superior to the other
branches.
than by those which are not fundamental. …

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AP U.S. Government and Politics Analytical Reading Activities

If, then, the courts of justice are to be considered as the bulwarks of a Connect to Content
limited Constitution against legislative encroachments, this consideration will How is Hamilton’s argument
afford a strong argument for the permanent tenure of judicial offices, since expressed in the workings of our
nothing will contribute so much as this to that independent spirit government today?
in the judges which must be essential to the faithful performance of so
arduous a duty.

There is yet a further and a weightier reason for the permanency of the judicial Academic Vocabulary
offices, which is deducible from the nature of the qualifications they require. It Define the word precedents as used in
has been frequently remarked, with great propriety, that a voluminous code of laws this paragraph.
is one of the inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is indispensable that
they should be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that comes before them;
and it will readily be conceived from the variety of controversies which grow out of
the folly and wickedness of mankind, that the records of those precedents must
unavoidably swell to a very considerable bulk, and must demand long and laborious
study to acquire a competent knowledge of them. Hence it is, that there can be but Check Your Understanding
few men in the society who will have sufficient skill in the laws to qualify
Highlight or underline the additional
them for the stations of judges. And making the proper deductions for the
reason outlined here in support of
ordinary depravity of human nature, the number must be still smaller of those who lifetime tenure of federal
unite the requisite integrity with the requisite knowledge. ... judges/justices.

Upon the whole, there can be no room to doubt that the convention acted wisely
in copying from the models of those constitutions which have established
GOOD BEHAVIOR as the tenure of their judicial offices . . .

PUBLIUS.

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AP U.S. Government and Politics Analytical Reading Activities

After You Read

Thinking Like a Political Scientist

Reasoning Process: Comparison

What claim put forward by those opposed to a strong and independent

judiciary does Hamilton address?

How does he answer that claim? What does his response tell you about the
Framers’ intentions regarding the institutional design of the judiciary?

Political Science Disciplinary Practices

Source Analysis

How does Hamilton support his claim that life tenure (good behavior) is a
necessity for an independent judiciary?

How does Hamilton’s defense of lifetime tenure and of judicial review relate
to the principles of separation of powers and checks and balances?

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