Federalist No. 78 (Alexander Hamilton) explains why an independent judiciary is necessary in a separation-of-powers system. Its core claim is that courts must be insulated from day-to-day politics to enforce the Constitution against overreach.

Federalist No. 78: Core Argument

Hamilton portrays the judiciary as essential to constitutional government because it decides cases by applying law, not by responding to elections or popular pressure. Judicial independence is presented as a design feature that allows courts to resist temporary political majorities and keep the Constitution meaningful in practice.

Key idea: constitutional limits must be enforceable

• A written Constitution creates limits on government power.

• Those limits matter only if an institution can apply them when political actors violate them.

• Courts are positioned to perform that function because they decide concrete disputes using legal reasoning and precedent-based interpretation.

Why Judicial Independence Matters

Judicial independence is the condition Hamilton argues makes constitutional enforcement credible: judges must be able to decide cases without fearing retaliation from elected officials or shifting political coalitions.

Structural protections Hamilton emphasises

Hamilton highlights institutional features that reduce political leverage over judges:

1862 “Diagram of the Federal Government and American Union” illustrating the three branches (Executive, Legislative, Judicial) as distinct constitutional departments. The chart is useful for studying judicial independence because it explicitly portrays the Supreme Court as a separate institution and describes life tenure during “good behavior,” a core structural protection Hamilton defends. It also situates courts within a broader constitutional system rather than treating judicial review as an isolated concept. Source

• Life tenure during “good Behaviour”: judges keep office unless removed for misconduct, reducing incentives to please political actors for reappointment.

• Salary protection: compensation cannot be reduced to punish unpopular decisions, limiting legislative coercion.

• Institutional separation: courts are not designed to initiate policy; they react to cases, reinforcing a legal (not electoral) role.

Checking the Other Branches

The syllabus emphasis is that Federalist No. 78 links independence to the judiciary’s ability to check the other branches.

Diagram showing the separation of powers and a two-way system of checks and balances among the legislative, executive, and judicial branches. It helps visualize Hamilton’s claim that courts can invalidate unconstitutional acts only if they remain institutionally distinct from the political branches they may need to restrain. Use it to connect the abstract idea of “checking the other branches” to concrete inter-branch mechanisms. Source

Hamilton argues that if courts are dependent on elected branches, they cannot credibly invalidate unconstitutional actions.

Courts as a check on legislative and executive power

• Courts can treat the Constitution as superior law when ordinary law conflicts with it.

• This supports the logic behind judicial review within constitutional government: constitutional rules are not merely aspirational; they can be enforced against political branches.

• Independence is crucial because the check often requires resisting:

  • legislative majorities that pass popular but unconstitutional statutes

  • executive actions that exceed lawful authority in particular cases

Hamilton’s reasoning relies on the idea that judges must be free to issue decisions that are unpopular in the short term if those decisions preserve constitutional boundaries.

“Least Dangerous Branch” and Why That Still Requires Independence

Hamilton also describes the judiciary as comparatively weak because it has neither:

• control over funding (“the purse”), nor

• control over enforcement (“the sword”).

Because courts depend on other actors to implement judgments, Hamilton argues they must maintain legitimacy through faithful legal reasoning. Independence supports that legitimacy by signalling that decisions are grounded in law rather than partisanship, which strengthens the judiciary’s capacity to function as a constitutional check even without direct enforcement powers.

Independence Within a Constitutional System

Federalist No. 78 does not argue for unaccountable judges in the sense of unlimited authority; instead, it argues that independence is necessary for judges to apply higher law consistently.

Independence serves constitutional government by:

• reducing incentives for judges to follow public opinion over constitutional text and principles

• stabilising constitutional interpretation across changing electoral cycles

• reinforcing separation of powers by preventing Congress or the president from dominating constitutional meaning through ordinary politics