Federalist No. 78
Federalist No. 78, authored by Alexander Hamilton under the pen name Publius, is the seventy-eighth of 85 essays. Titled "The Judiciary Department ", Hamilton explains that the federal judiciary should be the "least dangerous" of the three branches of the federal government as created by the United States Constitution.
It was published on May 28, 1788.
As designed at the Constitutional Convention, the judiciary was built to be least dangerous branch of government, notes Hamilton:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. 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, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and 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.
Unlike the President and Congress, judicial agents are not elected and thus are not representatives of the people. To prove this point, Hamilton describes that members of the judiciary only have the power of judgement, whereas the other branches also have the power of will:
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and 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.
Lacking the purse and lacking the sword, the judiciary has no inherent will to exercise its discretion.
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
This passage, like many others like it, make it clear that judicial review was something that the founders intended for the courts to possess. Judicial supremacy, on the other hand, which involves the courts granting themselves the power to legislate from the bench, cannot be found in any of the writings of the Founding Fathers, nor can it be found in the court case Marbury v. Madison.