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Federalist No. 77
Themes
Key
LitCharts assigns a color and icon to each theme in The Federalist Papers, which you can use to track the themes throughout the work.
The Importance of the Constitution
The Necessity of a Strong Union
Leadership and Representation
Checks and Balances
Federal Power vs. States Rights
Summary
Analysis
Alexander Hamilton shifts focus to the judiciary, arguing that an independent judicial branch is essential for protecting constitutional rights. He defends the principle of lifetime appointments for federal judges, explaining that long tenure ensures that judges remain impartial and do not fear political pressure. If judges had short terms and required reappointment, they might make decisions based on public opinion or the interests of those who control their reappointment, rather than interpreting the law fairly.
By making judges immune to the shifting winds of public opinion and partisan influence, Hamilton creates a judiciary that serves as a legal constant amid political change. This structure reinforces the idea that law should not evolve at the pace of electoral cycles but should serve as a steady reference point. The assumption here is that the Constitution itself requires guardians who are removed from immediate political pressures—judges who can prioritize legal consistency over popularity.
Themes
Hamilton also introduces the concept of judicial review, asserting that courts must have the authority to invalidate laws that violate the Constitution. Without this power, he warns, Congress could pass unconstitutional legislation without any legal restraint. The judiciary acts as a safeguard against legislative overreach, ensuring that laws remain consistent with constitutional principles. However, Hamilton reassures critics that the judiciary is the weakest of the three branches, as it has neither enforcement power nor control over public funds. Its strength comes solely from its ability to interpret and uphold the law, making it an essential check on government power while posing no threat to democratic governance.
Judicial review, as Hamilton presents it, is less about empowering courts and more about limiting the other branches. He positions the judiciary not as an activist force but as a defensive one—a kind of constitutional firewall. The key insight is that, in a system where both the legislative and executive branches are driven by political incentives, there needs to be at least one institution focused solely on legal boundaries. Hamilton’s framing shifts the debate: the real threat isn’t an overreaching judiciary but a legislative majority that might ignore constitutional limits without judicial oversight.
Themes
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