the imperative need for such a power to prevent legislative encroachment on the executive branch in order to preserve the separation of powers. He also sees the veto power as a means of curing the “inconstancy and mutability in the laws,” which he calls the “greatest blemish” on the character of the state governments. He looks upon the qualified veto as an encouragement for an otherwise reluctant chief executive to exercise this prerogative in questionable cases, because it lacks the finality of an absolute veto.
Continuing with his discussion of “competent powers” in Federalist No. 74, Publius turns to the president’s power as commander-in-chief, as well as his authority to require the “opinions, in writing” of his principal subordinates. The major portion of the essay, however, is devoted to his power “‘to grant reprieves and pardons.’” On this matter, he weighs the pros and cons of the argument that at least the concurrence of one chamber of the legislature should be required for pardons in the case of treason. On balance, he concludes, the need for flexibility and dispatch justifies vesting this authority solely with the executive. In No. 75 Publius examines the treaty-making power of the president by way of showing the appropriateness of the constitutional provisions relating to this authority. To the charge that the participation of the Senate in this process involves an undesirable mixture of legislative and executive powers he responds that the treaty-making power does not fit neatly into either the executive or the legislative branches, that it partakes of both. Moreover, he remarks, “the history of human conduct” indicates that the executive should not be able to exercise this whole power unilaterally. On the other hand, he observes, the Senate is not as suited as is the president for conducting treaty negotiations.
In the last two essays devoted to the presidency, Publius takes up the president’s power of appointment and the role of the Senate in this process. Nomination by the president and confirmation by the Senate, he contends in No. 76, have all the advantages of appointment by a single person while avoiding the factional strife that inevitably arises when assemblies are vested with the authority to appoint. Nomination by the president, he believes, will be tantamount to appointment. Though he recognizes that the Senate may reject the nomination—something he believes it would do infrequently in the absence of compelling reasons—the subsequent nominee would still be the preference of the president, not the Senate. In this vein he comments on the benefits that would result from Senate confirmation, not the least of which is that the mere possibility of rejection would serve as “a strong motive to care in proposing.” Finally, he sees little prospect that the president could use his powers of appointment “to corrupt or seduce a majority” of the senators.
Publius opens Federalist No. 77 by asserting that the Senate would have to consent to the removal of executive officers (a position rejected by the first Congress which, in effect, held that removal was an inherent executive power). The remainder of this paper, however, is devoted to defending the mode of appointment set forth in the proposed Constitution. In this regard, he dismisses as without foundation the contention that the Senate might be able to exercise an undue “influence [on] the executive.” He rejects any participation by the House of Representatives in the appointment process, because the “fluctuating” character of its large membership would destroy “the advantages of stability” and cause “infinite delays and embarrassments.” Toward the end of the essay, returning to a concern he discussed earlier in No. 70, he contends that the “structure and powers of the executive department” do “combine the requisites of safety, in the republican sense.” He cites, in this connection, the power of impeachment and removal and the concurrence of the Senate over those concerns where “abuse of the executive authority was materially to be feared.”
G. The Judiciary
In Federalist Nos. 78 through 83, Publius examines the third branch of government, the judiciary. The most significant of these essays is the first, in which he sets forth the case for judicial review, or what he describes as the power of the courts “to declare all acts [of the legislature] contrary to the manifest tenor of the Constitution void.”
In essay No. 78 Publius defends the constitutional provision for tenure during good behavior for justices. In the course of this defense, he notes the feebleness of the judiciary relative to the other branches of government: it has no control over either the “sword or the purse”; it “can take no active resolution whatever”; it “will always be the least dangerous to the political rights of the Constitution”; and it possesses “neither FORCE nor WILL, but merely judgment.” The national courts can pose a threat to the liberties of the people, he argues, only if they are united with either of the other two branches. Thus, he points out, there is a need for “PERMANENCY IN OFFICE” to secure its separation.
Having stressed the need to maintain a separation between the judiciary and the other branches to avoid tyranny, Publius goes on to contend that an independent judiciary is “essential in a limited constitution”—a constitution which, as he puts it, “contains . . . specified exceptions to legislative authority.” At this juncture, he sets forth his famous argument for judicial review. The Constitution, he insists, must be viewed as fundamental law, the embodiment of the constituent will of the people. Any legislative act contrary to a provision of this fundamental law, in his view, must be regarded as “void.” “To deny” this conclusion, he contends, “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.” Because “The interpretation of the laws is the proper and peculiar province of the courts,” Publius holds that it falls to them to determine when there exists an “irreconcilable difference” between the Constitution and a law passed by Congress. It is “the duty of the judicial tribunals,” he writes, to void statutes that contravene the “manifest tenor” of the Constitution. This does not mean, he adds, that the judiciary is superior to the legislature, but only that the will of the people expressed in the Constitution is superior to both.
In this essay Publius canvasses other reasons to justify life tenure. The independence of the courts is essential if they are to uphold the Constitution against any “momentary inclination” that may lead majorities to back proposals “incompatible with the provisions in the existing Constitution.” Changes or alterations in the Constitution, he insists, must be made through “some solemn and authoritative act”—i.e., through the amendment process outlined in Article V. Still another reason for the independence of the judiciary relates to the “qualifications” for fit judges. Not only must they be steeped in the law with a knowledge of precedents, they must also be individuals of high moral character. Such “fit characters,” he remarks, are not to be found in abundance. Life tenure, he reasons, might serve as an inducement for such characters to leave “a lucrative line of practice” in the private sector and to “accept a seat on the bench.”
Publius defends (No. 79) other constitutional provisions that provide for judicial independence. The constitutional provision that the compensation of judges “‘shall not be diminished during the continuance in office’” he regards as “the most eligible provision that could have been devised.” More importantly, he finds that the removal of judges through the impeachment process is the only method “consistent with the independence of the judicial character.”
In Federalist No. 80, Publius inquires into the “proper objects” of the “federal judicature” and whether Article III of the proposed Constitution conforms to them. In this connection he comments on the role of the federal courts in “giving efficacy to constitutional provisions” by overturning State laws in “manifest contravention” of the Constitution. Moreover, he also sees the need for a judicial power “coextensive” with the legislative to provide for “uniformity in the interpretation of the national laws.” He points as well to the need of the federal judiciary to act as an impartial arbiter in “determining causes between two states, between one state and the citizens of another, and between the citizens of different states.”
Having defended an independent federal judiciary with the power of judicial
