A collection of essays written by Alexander Hamilton, James Madison, and John Jay supporting the adoption of the U.S. Constitution.

In 1787 the Framers of the ConstitutionConstitution, U.S. of the United States were seeking support for its adoption. An important battleground was the large and influential state of New York, whose governor, George Clinton, strongly opposed adoption of the new Constitution. In hopes of swaying public opinion toward ratification, Alexander Hamilton,Hamilton, Alexander a lawyer who had been a delegate to the Constitutional Convention in Philadelphia earlier that year, began writing a series of essays that explained and defended the proposed Constitution. He enlisted the support of two equally respected and learned politicians, John JayJay, John and James Madison.Madison, James Writing under the joint pseudonym “Publius,” the three published eighty-five essays in New York City newspapers between October, 1787, and August, 1788. Because supporters of the Constitution were known as Federalists, the collection of essays, published in 1788, was known as The Federalist. The collected essays were used in both Virginia and New York by supporters of the Constitution during the final debates on ratification. The identities of the authors were kept secret, but it later became generally accepted that Hamilton wrote fifty-one essays, including all those related to the Supreme Court. Six of the last eight essays dealt with the judicial system that would be established by the new Constitution, and Nos. 78 through 82 are devoted to the Supreme Court.Federalism

Judicial Review

Judicial Review That the Supreme Court was the subject of only five of the eighty-five essays is not surprising because Publius considered the judicial branch to be the weakest of the three proposed sectors of government. However, one of the major points of opposition to the concept of a supreme court with the power of judicial review was the fear that it would become the most powerful branch of the government, able to overturn acts of Congress unimpeded.

James Madison, along with Alexander Hamilton and John Jay, authored The Federalist, an important document in the development of the Supreme Court.

(Library of Congress)

One of the most influential and well-known essays, No. 78, is Hamilton’s defense of judicial review. Here, Hamilton argues that judicial review does not invalidate the supremacy of the will of the people as expressed through their legislators but is a necessity for the principle of separation of powers. He points out that “the executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary…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.” Hamilton also argues for permanent tenure for judges as long as they exhibit good behavior.

Nos. 79 to 82

No. 79 is relatively brief and primarily addresses the need for adequate pay for judges.Salaries;judges No. 80 enumerates the types of cases to be reserved for the federal judiciary: “all cases in law and equity, arising under the Constitution and the laws of the United States”; cases involving treaties, ambassadors, and consuls; cases of admiralty and maritime jurisdiction; controversies to which the United States is a party; disputes between states or between citizens of different states; disputes between citizens of one state claiming land under grants of different states; and cases between states or citizens and foreign countries.

“No man [should] be a judge in his own cause, or in any cause in respect to which he has the least interest or bias,” Hamilton asserts in No. 80. He continues this argument in No. 81, when he disputes the argument advanced by certain opponents of establishing a supreme court that the British Parliament reviews its own laws; as Hamilton points out, the House of Lords must reconstitute itself as a special court, rather than acting as a legislative body. No. 81 also reiterates Hamilton’s assertion that the need for one supreme court cannot be disputed, referring back to No. 22, in which it was argued that having one supreme court in each state would be unworkable for cases involving the whole country. He also argues that while the Supreme Court will have appellate jurisdiction in cases of both law and fact, it still will be subject to any exceptions and regulations prescribed by Congress, and that the Court will have only two areas of original jurisdiction.

No. 82 discusses the relationship between the state courts and the Supreme Court. Here Hamilton refers back to No. 32, in which the relationship between state and federal governments in matters of taxation is discussed. In No. 82, it is also noted that the legislature will decide if the authority of the lower federal courts will be original or appellate or both.

Further Reading

  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. New York: The Library of America, 1993.
  • Cox, Archibald. The Court and the Constitution. Boston: Houghton Mifflin, 1987.
  • Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. New York: Penguin Books, 1961.
  • Smith, Page. The Constitution: A Documentary and Narrative History. New York: William Morrow, 1978.
  • Wills, Garry. Explaining America: The Federalist. Garden City, N.Y.: Doubleday, 1981.

Constitution, U.S.

Constitutional Convention

Hamilton, Alexander

Jay, John

Judicial review

Madison, James

Reversals of Court decisions by amendment

Reversals of Court decisions by Congress