September 19, 2025 • 13 mins
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
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Welcome back to Civics in a Year.
Today we are talking about mystudents.
Article 3 doesn't have a wholelot of information in it and
(00:27):
we'd turn to Federalist 78 toreally see you know what the
founders wanted.
So we have Dr Sean Byenbergback with us.
Dr Byenberg, what role doesFederalist 78 say that the
judiciary should play in thegovernment?
Speaker 2 (00:42):
Sure, federalist 78 is fundamentally an argument, as
Hamilton will spell out, forthe judiciary in a sense, but
more fundamentally forconstitutionalism and the
Constitution as the highest law.
It's worth putting a little bitof historical context here for
Federalist 78.
So we've talked about in otherpodcasts that the Federalist
(01:04):
Papers are most specifically aseries of rebuttals being
offered to critics, especiallythe skeptic of the Constitution,
brutus.
And Brutus, throughout springof 1788, has been writing a
series of, I think, quitecompelling critiques of the
judiciary that he sees that arebeing designed here.
So particularly Brutus, numbers11, 12, and 15.
(01:33):
And Brutus is concerned thatwhat's fundamentally being
created is a judicial systemthat will be far, far too
powerful.
And he uses some pretty funnylines in some points.
He says, just as a descriptivematter, there's no authority
that will remove them fromoffice if they mess it up.
I'll come back to that in asecond.
There's no error correction,nobody can correct their errors,
there's no appeal from them.
This will fundamentally makethem, he says, stronger than the
(01:54):
legislature.
And then the funniest sort ofcutting line in number 15, he
says in short, these judges willbe quote independent of the
people, of the legislature andof every power under heaven, men
placed in this situation willgenerally soon feel themselves
independent of heaven itself,right?
(02:15):
So he says this judiciary isbeing so strong they're not only
going to buck everyone inAmerica, they may even be
tempted to start bucking God.
I mean, this is how strong thisjudiciary is.
And he says really, do you wantto hand this kind of power over
to these people?
And so Hamilton, in Federalist78, and in themes he'll continue
on a little more, particularlyin 80 and especially 81, is
(02:39):
trying to say no, this doesn'tcreate 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 casefor judicial review and he says
first, this judiciary needs tobe independent, it needs to have
(02:59):
basically strong terms.
Remember this is one of theobjections that are raised in
the Declaration of Independencethat the British crown is
basically co-opting the judgesby tweaking their salaries and
their tenure and whatnot, andthat had been antithetical to
English constitutional traditionand history.
(03:20):
So the English tradition meansthat the judges should be
independent.
It's worth emphasizing thatBrutus actually is sympathetic
to this point.
Brutus basically says I'm okaywith judicial independence, but
my fear is judicial independencecombined with the fact that no
constitution.
So if the judges make a ruling,either lords can sort of appeal
(03:47):
it or overrule it in some cases, acting as a court or
parliament can just simplychange the law.
So Brutus says the problem isthat you're trying to overlay
judicial independence, which isfine, with this new idea of a
higher law system where thejudges are enforcing the
Constitution against thelegislature.
So Brutus is not critical ofjudicial independence per se.
(04:11):
So what is this case of judicialreview?
And it's worth pausing, andwe'll talk more about this when
we do the Marbury episode.
It's worth noting that bothBrutus in his letter number 11
and Hamilton in Federalist 78are assuming and defending the
idea of judicial review.
They agree that it's in there.
They disagree on whether that'sgood or not.
But I think this is importantevidence for the sort of folks
(04:34):
who occasionally will say, ah,judicial review was just
hallucinated by, you know, johnMarshall.
You know, 10 years later, notthe case.
So Hamilton is laying out thiscase for judicial review and he
says look, we've tried to buildthis system and this is
something that's been sort ofbuilt up in the last 15 years of
American political thought,this idea of constitutionalism
(04:54):
as a higher law.
The British have this as thissort of unwritten set of norms.
The Americans increasinglyunderstand constitutions by
virtue of writing their stateconstitutions, especially as
writing out higher law that isbinding on all parts of the
government.
And so Hamilton says you needan institution that can enforce
(05:15):
limits on your government, thatcan enforce limits on the
federal government where it'sexceeding its powers, that
enforce limits on the stateswhere they're interfering with
the properly enumerated powersgiven to the federal government
in the constitution, limits onyour executive when it's
interfering with legislativeprerogative and so on.
So if this constitution isindeed supposed to limit
(05:35):
government, which we think is acore goal, you need to have an
adjudicator for that and itcan't be one of the other
directly involved parties.
The executive is going to saywell, of course we can do that.
The legislature is going to sayof course we can do that.
The states are going to say, ofcourse.
So he says you need somebodyelse and they need to be
independent.
And so, particularly if theidea that the constitution is
(05:57):
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 bygovernment, a regular law passed
by Congress, an executiveimplementation of a statute, a
state passing a law that is intension with the Constitution.
(06:18):
Hamilton says if theConstitution is superior, it
needs to trump every one ofthose sort of regular operations
of government.
And so if we want to think ofthe Constitution as a
fundamental law that weconsented to in a meaningful way
or we regard as higher law, itneeds to be sort of separately
enforced.
Now then and he goes through,and this is where he gets into
(06:39):
some sort of complicatedpolitical theory that may or may
not be the best part of it, buthe says all this means is that
the people are the highest law,not the judges, which in some
ways is kind of a dodge andBrutus kind of will go back and
forth with him in this logichere.
But he says the people areultimately supreme.
Okay, we all agree on that as atheoretical matter, the
(07:00):
Constitution is the people'swill.
So therefore the peoplefundamentally want the
Constitution enforced againstthe government.
Even if the people aretemporarily howling and
screaming that they want someparticular thing done, they
fundamentally, as a sort oflong-term perspective, want the
rule of law, want the idea oflimits on government, even if
they're worked up about it now.
(07:21):
So he tries to say this doesn'tmake the judiciary superior to
the legislature, as Brutus said,makes the people superior to
both, as the phrase goes.
Your mileage may vary on howcompelling you find that
particular argument, butHamilton is trying to say this
is ultimately again reinforcingthe idea of the Constitution as
supreme and not the judiciary assuperior.
(07:42):
In fact he argues and this isanother argument that people
have found sort of more or lesscredible over time that the
judiciary will be the leastdangerous and the weakest branch
because it will.
Ultimately, it doesn't have anarmy, like John Roberts doesn't
have an army.
It's basically power comes frompersuasive will or not.
That may or may not be true ifwe're fearing sort of direct
(08:03):
armies marching into your house.
But in terms of potentiallymaking policy, if the judiciary
extends beyond what it'ssupposed to do, that may or may
not be the case.
Now, here is where I think andthen he makes one additional
point which connects back to theidea of the Constitution is the
highest law that the case forthis judicial independence, that
(08:32):
the judges can't get pushedaround by the other branches, is
fundamentally connected to theidea that the judges are
enforcing the Constitution andnot their own policy or
ideological preferences.
If you detach judicial actionfrom that constitutional
enforcement, the case forjudicial independence that
Hamilton lays out collapsescompletely Right.
So this is where Hamilton isquite explicit in effectively
(08:56):
deriding what I think some woulddescribe as a version of sort
of living constitutionalism,where judges can sort of update
the Constitution.
Hamilton says very bluntlyuntil the people have, by a
solemn and authoritative act,that is to say, I've pulled or
changed the established form, itis binding on themselves
collectively as well asindividually.
(09:16):
No presumption or evenknowledge of their sentiments
can warrant representatives indeparture from it prior to such
an act.
So he basically says even if wetook a big poll and so all the
Americans want to ignore somepart of the Constitution, the
judge's job is to continue toenforce it.
This is an argument thatWashington reiterates in his
farewell address.
I don't remember whether thatwas a section that Hamilton or
Madison wrote, but the sentimentwas consistent with either of
(09:38):
them that the amendment processis what the people are supposed
to do.
The judges are themselves notsupposed to be implementing that
.
This is a point that CalvinCoolidge raises a lot during
prohibition, when he's lookingaround at polls showing that
Americans are kind of tired ofprohibition, and he effectively
says well, you want it gone,make another constitutional
amendment.
Like my, job is to take an oathto enforce the constitution as
(10:01):
written, not to sort of justtake a poll.
And so Hamilton is in a sensepushing back on these people are
going to be wild, they're goingto 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 herecognizes those possibilities.
May be true, but the tradeoffis we have no other way to
(10:22):
meaningfully enforce theConstitution as a higher law
unless we have some branch thatis basically not directly
accountable.
But he's arguing judicialreview fundamentally must follow
from enforcing the Constitutionas the highest law.
If the judges are justbasically pushing through their
arbitrary preferences, then thatdoes in a sense vindicate
(10:44):
Brutus.
So there's a way to sort of seethat they're both right.
Hamilton is right in the senseof if the judges are doing their
actual job enforcing theConstitution, then they should
be robustly independent.
But they should only beenforcing the Constitution.
The more that they deviate fromthat, the weaker the case that
Hamilton makes and the morecompelling Brutus' critique and
(11:06):
fear looks like compelling.
Speaker 1 (11:11):
Brutus's critique and fear looks like and that's
interesting that in FederalAssembly and Brutus 11, they're
both agreeing that judicialreview exists.
It's just really whether it isgood or bad.
Speaker 2 (11:18):
So one of Brutus's fears, in fact, that the judges
will exceed their mandate is, hesays, that judges will update,
according to quote, the spiritof the Constitution rather than
its actual test and so ratherthan its actual text.
So Brutus is concerned thatthis will create sort of a
pretextual possibility forjudges to sort of smuggle their
policy preferences through,particularly the more abstractly
(11:41):
that one is looking at theConstitution.
And so this is a point thatHamilton in Federalist 81
responds to a little bit andsays no, no, no, no, no, they're
just going to be doing theConstitution, they're not going
to be sort of making it up.
But it is worth noting thatBrutus fears and anticipates
that the more abstract judginggets, the more that they're
going to hide behind the spiritof the Constitution as a pretext
(12:04):
, rather than the actualConstitution.
Welcome back to Civics in a Year.
Today we are talking about mystudents.
Article 3 doesn't have a wholelot of information in it and
(00:27):
we'd turn to Federalist 78 toreally see you know what the
founders wanted.
So we have Dr Sean Byenbergback with us.
Dr Byenberg, what role doesFederalist 78 say that the
judiciary should play in thegovernment?
Speaker 2 (00:42):
Sure, federalist 78 is fundamentally an argument, as
Hamilton will spell out, forthe judiciary in a sense, but
more fundamentally forconstitutionalism and the
Constitution as the highest law.
It's worth putting a little bitof historical context here for
Federalist 78.
So we've talked about in otherpodcasts that the Federalist
(01:04):
Papers are most specifically aseries of rebuttals being
offered to critics, especiallythe skeptic of the Constitution,
brutus.
And Brutus, throughout springof 1788, has been writing a
series of, I think, quitecompelling critiques of the
judiciary that he sees that arebeing designed here.
So particularly Brutus, numbers11, 12, and 15.
(01:33):
And Brutus is concerned thatwhat's fundamentally being
created is a judicial systemthat will be far, far too
powerful.
And he uses some pretty funnylines in some points.
He says, just as a descriptivematter, there's no authority
that will remove them fromoffice if they mess it up.
I'll come back to that in asecond.
There's no error correction,nobody can correct their errors,
there's no appeal from them.
This will fundamentally makethem, he says, stronger than the
(01:54):
legislature.
And then the funniest sort ofcutting line in number 15, he
says in short, these judges willbe quote independent of the
people, of the legislature andof every power under heaven, men
placed in this situation willgenerally soon feel themselves
independent of heaven itself,right?
(02:15):
So he says this judiciary isbeing so strong they're not only
going to buck everyone inAmerica, they may even be
tempted to start bucking God.
I mean, this is how strong thisjudiciary is.
And he says really, do you wantto hand this kind of power over
to these people?
And so Hamilton, in Federalist78, and in themes he'll continue
on a little more, particularlyin 80 and especially 81, is
(02:39):
trying to say no, this doesn'tcreate 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 casefor judicial review and he says
first, this judiciary needs tobe independent, it needs to have
(02:59):
basically strong terms.
Remember this is one of theobjections that are raised in
the Declaration of Independencethat the British crown is
basically co-opting the judgesby tweaking their salaries and
their tenure and whatnot, andthat had been antithetical to
English constitutional traditionand history.
(03:20):
So the English tradition meansthat the judges should be
independent.
It's worth emphasizing thatBrutus actually is sympathetic
to this point.
Brutus basically says I'm okaywith judicial independence, but
my fear is judicial independencecombined with the fact that no
constitution.
So if the judges make a ruling,either lords can sort of appeal
(03:47):
it or overrule it in some cases, acting as a court or
parliament can just simplychange the law.
So Brutus says the problem isthat you're trying to overlay
judicial independence, which isfine, with this new idea of a
higher law system where thejudges are enforcing the
Constitution against thelegislature.
So Brutus is not critical ofjudicial independence per se.
(04:11):
So what is this case of judicialreview?
And it's worth pausing, andwe'll talk more about this when
we do the Marbury episode.
It's worth noting that bothBrutus in his letter number 11
and Hamilton in Federalist 78are assuming and defending the
idea of judicial review.
They agree that it's in there.
They disagree on whether that'sgood or not.
But I think this is importantevidence for the sort of folks
(04:34):
who occasionally will say, ah,judicial review was just
hallucinated by, you know, johnMarshall.
You know, 10 years later, notthe case.
So Hamilton is laying out thiscase for judicial review and he
says look, we've tried to buildthis system and this is
something that's been sort ofbuilt up in the last 15 years of
American political thought,this idea of constitutionalism
(04:54):
as a higher law.
The British have this as thissort of unwritten set of norms.
The Americans increasinglyunderstand constitutions by
virtue of writing their stateconstitutions, especially as
writing out higher law that isbinding on all parts of the
government.
And so Hamilton says you needan institution that can enforce
(05:15):
limits on your government, thatcan enforce limits on the
federal government where it'sexceeding its powers, that
enforce limits on the stateswhere they're interfering with
the properly enumerated powersgiven to the federal government
in the constitution, limits onyour executive when it's
interfering with legislativeprerogative and so on.
So if this constitution isindeed supposed to limit
(05:35):
government, which we think is acore goal, you need to have an
adjudicator for that and itcan't be one of the other
directly involved parties.
The executive is going to saywell, of course we can do that.
The legislature is going to sayof course we can do that.
The states are going to say, ofcourse.
So he says you need somebodyelse and they need to be
independent.
And so, particularly if theidea that the constitution is
(05:57):
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 bygovernment, a regular law passed
by Congress, an executiveimplementation of a statute, a
state passing a law that is intension with the Constitution.
(06:18):
Hamilton says if theConstitution is superior, it
needs to trump every one ofthose sort of regular operations
of government.
And so if we want to think ofthe Constitution as a
fundamental law that weconsented to in a meaningful way
or we regard as higher law, itneeds to be sort of separately
enforced.
Now then and he goes through,and this is where he gets into
(06:39):
some sort of complicatedpolitical theory that may or may
not be the best part of it, buthe says all this means is that
the people are the highest law,not the judges, which in some
ways is kind of a dodge andBrutus kind of will go back and
forth with him in this logichere.
But he says the people areultimately supreme.
Okay, we all agree on that as atheoretical matter, the
(07:00):
Constitution is the people'swill.
So therefore the peoplefundamentally want the
Constitution enforced againstthe government.
Even if the people aretemporarily howling and
screaming that they want someparticular thing done, they
fundamentally, as a sort oflong-term perspective, want the
rule of law, want the idea oflimits on government, even if
they're worked up about it now.
(07:21):
So he tries to say this doesn'tmake the judiciary superior to
the legislature, as Brutus said,makes the people superior to
both, as the phrase goes.
Your mileage may vary on howcompelling you find that
particular argument, butHamilton is trying to say this
is ultimately again reinforcingthe idea of the Constitution as
supreme and not the judiciary assuperior.
(07:42):
In fact he argues and this isanother argument that people
have found sort of more or lesscredible over time that the
judiciary will be the leastdangerous and the weakest branch
because it will.
Ultimately, it doesn't have anarmy, like John Roberts doesn't
have an army.
It's basically power comes frompersuasive will or not.
That may or may not be true ifwe're fearing sort of direct
(08:03):
armies marching into your house.
But in terms of potentiallymaking policy, if the judiciary
extends beyond what it'ssupposed to do, that may or may
not be the case.
Now, here is where I think andthen he makes one additional
point which connects back to theidea of the Constitution is the
highest law that the case forthis judicial independence, that
(08:32):
the judges can't get pushedaround by the other branches, is
fundamentally connected to theidea that the judges are
enforcing the Constitution andnot their own policy or
ideological preferences.
If you detach judicial actionfrom that constitutional
enforcement, the case forjudicial independence that
Hamilton lays out collapsescompletely Right.
So this is where Hamilton isquite explicit in effectively
(08:56):
deriding what I think some woulddescribe as a version of sort
of living constitutionalism,where judges can sort of update
the Constitution.
Hamilton says very bluntlyuntil the people have, by a
solemn and authoritative act,that is to say, I've pulled or
changed the established form, itis binding on themselves
collectively as well asindividually.
(09:16):
No presumption or evenknowledge of their sentiments
can warrant representatives indeparture from it prior to such
an act.
So he basically says even if wetook a big poll and so all the
Americans want to ignore somepart of the Constitution, the
judge's job is to continue toenforce it.
This is an argument thatWashington reiterates in his
farewell address.
I don't remember whether thatwas a section that Hamilton or
Madison wrote, but the sentimentwas consistent with either of
(09:38):
them that the amendment processis what the people are supposed
to do.
The judges are themselves notsupposed to be implementing that
.
This is a point that CalvinCoolidge raises a lot during
prohibition, when he's lookingaround at polls showing that
Americans are kind of tired ofprohibition, and he effectively
says well, you want it gone,make another constitutional
amendment.
Like my, job is to take an oathto enforce the constitution as
(10:01):
written, not to sort of justtake a poll.
And so Hamilton is in a sensepushing back on these people are
going to be wild, they're goingto 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 herecognizes those possibilities.
May be true, but the tradeoffis we have no other way to
(10:22):
meaningfully enforce theConstitution as a higher law
unless we have some branch thatis basically not directly
accountable.
But he's arguing judicialreview fundamentally must follow
from enforcing the Constitutionas the highest law.
If the judges are justbasically pushing through their
arbitrary preferences, then thatdoes in a sense vindicate
(10:44):
Brutus.
So there's a way to sort of seethat they're both right.
Hamilton is right in the senseof if the judges are doing their
actual job enforcing theConstitution, then they should
be robustly independent.
But they should only beenforcing the Constitution.
The more that they deviate fromthat, the weaker the case that
Hamilton makes and the morecompelling Brutus' critique and
(11:06):
fear looks like compelling.
Speaker 1 (11:11):
Brutus's critique and fear looks like and that's
interesting that in FederalAssembly and Brutus 11, they're
both agreeing that judicialreview exists.
It's just really whether it isgood or bad.
Speaker 2 (11:18):
So one of Brutus's fears, in fact, that the judges
will exceed their mandate is, hesays, that judges will update,
according to quote, the spiritof the Constitution rather than
its actual test and so ratherthan its actual text.
So Brutus is concerned thatthis will create sort of a
pretextual possibility forjudges to sort of smuggle their
policy preferences through,particularly the more abstractly
(11:41):
that one is looking at theConstitution.
And so this is a point thatHamilton in Federalist 81
responds to a little bit andsays no, no, no, no, no, they're
just going to be doing theConstitution, they're not going
to be sort of making it up.
But it is worth noting thatBrutus fears and anticipates
that the more abstract judginggets, the more that they're
going to hide behind the spiritof the Constitution as a pretext
(12:04):
, rather than the actualConstitution.
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