Federalist #76

The Appointing Power of the Executive  (Hamilton)

In the first of his six Federalist papers dealing with the federal judiciary, Alexander Hamilton addresses the three main problems opponents have with Article III of the Constitution. One, the method of appointed judges, Two, the tenure of by which judge hold their positions and the relationships between the courts. The most famous analogy concerning the judiciary comes from this paper, in which Hamilton calls the judiciary the least dangerous branch because they control neither the purse nor the sword. The reason for an independent judiciary (as opposed to having the legislative or executive branch do it) is that “there is no liberty, if the power of judging be not separated from the legislature and executive powers.”

In addition, Hamilton makes the case for judicial review when he writes that the role of the Supreme Court “must be to declare all acts contrary to the manifest tenor of the Constitution void.” In order to reassure those who are afraid of the judiciary, Hamilton writes that courts cannot substitute their own pleasure to the constitutional intentions of the legislature. 

As for the independence of the judges, Hamilton argues that it is necessary in order to ensure more deliberation and give more standing to better information than those who are swept up by the passions of the times. It not only moderates legislation but also to checks the legislature from their own actions. Also, Hamilton notes that the reason for life tenure for judges is that since the nature of laws is so complex, very few will be able to serve with honor and fairness. In order to provide for the judges and give strength to their rulings, they should have encouragement to leave the private sector and serve.