Civics In A Year
What do you really know about American government, the Constitution, and your rights as a citizen?
Civics in a Year is a fast-paced podcast series that delivers essential civic knowledge in just 10 minutes per episode. Over the course of a year, we’ll explore 250 key questions—from the founding documents and branches of government to civil liberties, elections, and public participation.
Rooted in the Civic Literacy Curriculum from the Center for American Civics at Arizona State University, this series is a collaborative project supported by the School of Civic and Economic Thought and Leadership. Each episode is designed to spark curiosity, strengthen constitutional understanding, and encourage active citizenship.
Whether you're a student, educator, or lifelong learner, Civics in a Year will guide you through the building blocks of American democracy—one question at a time.
Civics In A Year
Hamilton vs. Brutus: The Battle Over Judicial Power in Federalist 78
Dr. Sean Beienberg examines the historical debate between Alexander Hamilton and Brutus regarding judicial power and independence in the American constitutional system. Hamilton's Federalist 78 defends judicial review as necessary for enforcing constitutional limits on government, while Brutus feared creating an unaccountable judicial oligarchy.
• Both Hamilton and Brutus agreed judicial review existed in the Constitution but disagreed on whether it was beneficial
• Brutus warned judges would become "independent of heaven itself" with no checks on their power
• Hamilton argued the judiciary would be "the least dangerous branch" lacking enforcement mechanisms
• The case for judicial independence collapses if judges enforce their preferences rather than the Constitution
• Hamilton explicitly rejected judges updating the Constitution based on changing public sentiment
• Brutus feared judges would rely on the "spirit" rather than text of the Constitution to expand their power
Listen to our other episodes in the Civics in a Year series to build your understanding of America's constitutional foundations.
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School of Civic and Economic Thought and Leadership
Welcome back to Civics in a Year. Today we are talking about my students. Article 3 doesn't have a whole lot of information in it and we'd turn to Federalist 78 to really see you know what the founders wanted. So we have Dr Sean Byenberg back with us. Dr Byenberg, what role does Federalist 78 say that the judiciary should play in the government?
Speaker 2:Sure, federalist 78 is fundamentally an argument, as Hamilton will spell out, for the judiciary in a sense, but more fundamentally for constitutionalism and the Constitution as the highest law. It's worth putting a little bit of historical context here for Federalist 78. So we've talked about in other podcasts that the Federalist Papers are most specifically a series of rebuttals being offered to critics, especially the skeptic of the Constitution, brutus. And Brutus, throughout spring of 1788, has been writing a series of, I think, quite compelling critiques of the judiciary that he sees that are being designed here. So particularly Brutus, numbers 11, 12, and 15.
Speaker 2:And Brutus is concerned that what's fundamentally being created is a judicial system that will be far, far too powerful. And he uses some pretty funny lines in some points. He says, just as a descriptive matter, there's no authority that will remove them from office if they mess it up. I'll come back to that in a second. There's no error correction, nobody can correct their errors, there's no appeal from them. This will fundamentally make them, he says, stronger than the legislature. And then the funniest sort of cutting line in number 15, he says in short, these judges will be quote independent of the people, of the legislature and of every power under heaven, men placed in this situation will generally soon feel themselves independent of heaven itself, right? So he says this judiciary is being so strong they're not only going to buck everyone in America, they may even be tempted to start bucking God. I mean, this is how strong this judiciary is. And he says really, do you want to hand this kind of power over to these people? And so Hamilton, in Federalist 78, and in themes he'll continue on a little more, particularly in 80 and especially 81, is trying to say no, this doesn't create this judicial oligarchy that Brutus fears. It does create something strong, but it's something strong directed in a specific channel. And so he's laying out the case for judicial review and he says first, this judiciary needs to be independent, it needs to have basically strong terms.
Speaker 2:Remember this is one of the objections that are raised in the Declaration of Independence that the British crown is basically co-opting the judges by tweaking their salaries and their tenure and whatnot, and that had been antithetical to English constitutional tradition and history. So the English tradition means that the judges should be independent. It's worth emphasizing that Brutus actually is sympathetic to this point. Brutus basically says I'm okay with judicial independence, but my fear is judicial independence combined with the fact that no constitution. So if the judges make a ruling, either lords can sort of appeal it or overrule it in some cases, acting as a court or parliament can just simply change the law. So Brutus says the problem is that you're trying to overlay judicial independence, which is fine, with this new idea of a higher law system where the judges are enforcing the Constitution against the legislature. So Brutus is not critical of judicial independence per se.
Speaker 2:So what is this case of judicial review? And it's worth pausing, and we'll talk more about this when we do the Marbury episode. It's worth noting that both Brutus in his letter number 11 and Hamilton in Federalist 78 are assuming and defending the idea of judicial review. They agree that it's in there. They disagree on whether that's good or not. But I think this is important evidence for the sort of folks who occasionally will say, ah, judicial review was just hallucinated by, you know, john Marshall. You know, 10 years later, not the case.
Speaker 2:So Hamilton is laying out this case for judicial review and he says look, we've tried to build this system and this is something that's been sort of built up in the last 15 years of American political thought, this idea of constitutionalism as a higher law. The British have this as this sort of unwritten set of norms. The Americans increasingly understand constitutions by virtue of writing their state constitutions, especially as writing out higher law that is binding on all parts of the government. And so Hamilton says you need an institution that can enforce limits on your government, that can enforce limits on the federal government where it's exceeding its powers, that enforce limits on the states where they're interfering with the properly enumerated powers given to the federal government in the constitution, limits on your executive when it's interfering with legislative prerogative and so on. So if this constitution is indeed supposed to limit government, which we think is a core goal, you need to have an adjudicator for that and it can't be one of the other directly involved parties. The executive is going to say well, of course we can do that. The legislature is going to say of course we can do that. The states are going to say, of course. So he says you need somebody else and they need to be independent. And so, particularly if the idea that the constitution is fundamental law, hamilton says, is really a core, seemingly a core value, and so, therefore, if we have that as the highest law and a regular action by government, a regular law passed by Congress, an executive implementation of a statute, a state passing a law that is in tension with the Constitution.
Speaker 2:Hamilton says if the Constitution is superior, it needs to trump every one of those sort of regular operations of government. And so if we want to think of the Constitution as a fundamental law that we consented to in a meaningful way or we regard as higher law, it needs to be sort of separately enforced. Now then and he goes through, and this is where he gets into some sort of complicated political theory that may or may not be the best part of it, but he says all this means is that the people are the highest law, not the judges, which in some ways is kind of a dodge and Brutus kind of will go back and forth with him in this logic here. But he says the people are ultimately supreme. Okay, we all agree on that as a theoretical matter, the Constitution is the people's will. So therefore the people fundamentally want the Constitution enforced against the government. Even if the people are temporarily howling and screaming that they want some particular thing done, they fundamentally, as a sort of long-term perspective, want the rule of law, want the idea of limits on government, even if they're worked up about it now. So he tries to say this doesn't make the judiciary superior to the legislature, as Brutus said, makes the people superior to both, as the phrase goes.
Speaker 2:Your mileage may vary on how compelling you find that particular argument, but Hamilton is trying to say this is ultimately again reinforcing the idea of the Constitution as supreme and not the judiciary as superior. In fact he argues and this is another argument that people have found sort of more or less credible over time that the judiciary will be the least dangerous and the weakest branch because it will. Ultimately, it doesn't have an army, like John Roberts doesn't have an army. It's basically power comes from persuasive will or not. That may or may not be true if we're fearing sort of direct armies marching into your house. But in terms of potentially making policy, if the judiciary extends beyond what it's supposed to do, that may or may not be the case.
Speaker 2:Now, here is where I think and then he makes one additional point which connects back to the idea of the Constitution is the highest law that the case for this judicial independence, that the judges can't get pushed around by the other branches, is fundamentally connected to the idea that the judges are enforcing the Constitution and not their own policy or ideological preferences. If you detach judicial action from that constitutional enforcement, the case for judicial independence that Hamilton lays out collapses completely Right. So this is where Hamilton is quite explicit in effectively deriding what I think some would describe as a version of sort of living constitutionalism, where judges can sort of update the Constitution. Hamilton says very bluntly until the people have, by a solemn and authoritative act, that is to say, I've pulled or changed the established form, it is binding on themselves collectively as well as individually. No presumption or even knowledge of their sentiments can warrant representatives in departure from it prior to such an act. So he basically says even if we took a big poll and so all the Americans want to ignore some part of the Constitution, the judge's job is to continue to enforce it.
Speaker 2:This is an argument that Washington reiterates in his farewell address. I don't remember whether that was a section that Hamilton or Madison wrote, but the sentiment was consistent with either of them that the amendment process is what the people are supposed to do. The judges are themselves not supposed to be implementing that. This is a point that Calvin Coolidge raises a lot during prohibition, when he's looking around at polls showing that Americans are kind of tired of prohibition, and he effectively says well, you want it gone, make another constitutional amendment. Like my, job is to take an oath to enforce the constitution as written, not to sort of just take a poll.
Speaker 2:And so Hamilton is in a sense pushing back on these people are going to be wild, they're going to be rogue, they're going to be doing whatever they want, they're going to be independent. That's dangerous, hamilton says. I reckon basically that he recognizes those possibilities. May be true, but the tradeoff is we have no other way to meaningfully enforce the Constitution as a higher law unless we have some branch that is basically not directly accountable. But he's arguing judicial review fundamentally must follow from enforcing the Constitution as the highest law. If the judges are just basically pushing through their arbitrary preferences, then that does in a sense vindicate Brutus. So there's a way to sort of see that they're both right. Hamilton is right in the sense of if the judges are doing their actual job enforcing the Constitution, then they should be robustly independent. But they should only be enforcing the Constitution. The more that they deviate from that, the weaker the case that Hamilton makes and the more compelling Brutus' critique and fear looks like compelling.
Speaker 1:Brutus's critique and fear looks like and that's interesting that in Federal Assembly and Brutus 11, they're both agreeing that judicial review exists. It's just really whether it is good or bad.
Speaker 2:So one of Brutus's fears, in fact, that the judges will exceed their mandate is, he says, that judges will update, according to quote, the spirit of the Constitution rather than its actual test and so rather than its actual text. So Brutus is concerned that this will create sort of a pretextual possibility for judges to sort of smuggle their policy preferences through, particularly the more abstractly that one is looking at the Constitution. And so this is a point that Hamilton in Federalist 81 responds to a little bit and says no, no, no, no, no, they're just going to be doing the Constitution, they're not going to be sort of making it up. But it is worth noting that Brutus fears and anticipates that the more abstract judging gets, the more that they're going to hide behind the spirit of the Constitution as a pretext, rather than the actual Constitution.
