Federalist No. 81

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Alexander Hamilton

Federalist No. 81, authored by Alexander Hamilton under the pen name Publius, is the eighty first of 85 essays. Titled "The Judiciary Continued, and the Distribution of the Judicial Authority", Hamilton addresses concerns regarding the new court system. He points out that the Constitution does not contain anything to allow the federal courts to "construe the laws according to the Constitution", as that would be a form of Judicial activism.

It was published on June 25, 1788.

Constitution paramount

For a more detailed treatment, see Constitutional supremacy.

Hamilton argued that the Constitution is supreme to any one branch of government, and that this idea was not anything unique to the new Federal Constitution. He wrote:

The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution.

All 13 states (at the time) and their constitutions relied on a similar ideal.

Weakest branch

The idea that all three branches of government: The Executive, the Legislative, and the Judicial branches - were all created as exactly co-equal branches of each other has been a controversial topic to some. Hamilton addresses this, where he wrote:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.

At the convention, the Founders spent the least amount of time on the judiciary. In the Constitution, the judiciary has the smallest amount of content. Here, Hamilton points out explicitly the court's "comparative weakness". Exactly co-equal branches do not have "comparative weaknesses" amongst each other.

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