Misquoting Federalist 78
Author: Timothy Sandefur
One of my long-standing pet peeves is the way advocates of “judicial restraint” often mis-quote Alexander Hamilton’s brilliant Federalist 78. They’re particularly fond of the phrase “if they [the courts] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body,” or the phrase “neither FORCE nor WILL, but merely judgment.” Sometimes you see this emblazoned on pamphlets or banners by those who argue in favor of “restraint” and against “activism.”
But read the rest of Federalist 78, and you see that the entire article is not about judicial restraint or the “limited role of judges in our democratic process” at all. Hamilton’s thesis is the need for a vigorous and engaged judiciary to protect the Constitution against inroads by the legislature. It’s a devoutly counter-majoritarian argument, and Hamilton’s contrast of will with judgment is intended to bolster his argument that courts should be more independent of the democratic process.
For Hamilton, the Constitution, and not legislation, is the true will of the people. The people form a political compact and then delegate the day-to-day operation of the government to elected “deputies.” The Constitution is like an employment contract, therefore, which limits (in both explicit and implicit ways) what the employee may do. If the employees exceed those limits—if the legislature goes beyond its constitutional authority—then they are no longer acting within their legitimate authority and their acts lack legitimacy. Just as “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void,” so, too, “[n]o legislative act…contrary to the Constitution, can be valid.”
To say otherwise—to say that the temporary will of the legislature as articulated in a piece of legislation should be preferred over the will of the people as articulated in the Constitution “would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
It’s the role of judges, Hamilton says, to enforce the constitutional limits on legislative authority: “courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
To perform this role, of course, the judges have to be independent of the people. Not entirely independent, certainly—that would also be dangerous, as Madison says in Federalist 51, “because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.” But they do need a degree of independence if they are going to perform their necessary function of limiting the temporary majority and ensuring that they obey the Constitution.
This is where Hamilton’s references to “will” and “judgment” come in. Will is a basic, powerful force—a force of strength and exertion. One might say, with some inaccuracy, that it is the essential characteristic of the executive. It is a dangerous force; a necessary one, but one which must be kept on a tight leash. Will is the power of the sword; it cannot be trusted with independence because it might turn on the people. Judgment, by contrast, is the power of the book; it is the characteristic element of the judicial branch. The judge exercises detached reason and analysis. Judgment must not be kept on a tight leash, because judgment should not be swayed by passion, influence, self-interest, threats, or other distracting emotional influences. In this picture, law has no concern for political consequences and has little interest in deference; it simply pronounces its best determination of reason.
In other words, in Hamilton’s view, it is precisely because courts exercise judgment instead of will that they should be vigorous and independent—that they should not be “restrained” by considerations of majority rule. Hamilton contrasts “will” and “judgment” in order to emphasize the importance of an active judiciary—to help submit the boisterous passions of democracy to the discipline of the Constitution’s supreme law, not to foster mere majority rule.
Cross-posted at The Cockle Bur
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