The Federalist Papers | Study Guide

Alexander Hamilton

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The Federalist Papers | Essays 76–78 | Summary

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Summary

Essay 76: The Appointing Power of the Executive

Among the appointments that the president may make, with the advice and consent of the Senate, are judges of the Supreme Court and ambassadors. Therefore, the appointment power is a major feature of the office. In this essay Hamilton reflects that the Constitution might have vested this power solely in the president, solely in a select assembly "of a moderate number," or jointly in the president and a select assembly. The framers of the new Constitution—in Hamilton's view wisely—chose the third option.

If the president were to have sole control of the appointments power, favoritism might remain unchecked. On the other hand, if an assembly were to control appointments, faction and partisanship might result in horse trading and crude bargaining.

Hamilton also mentions in this essay a subtler restraint on the president in the appointments process. Rejection of a presidential appointee by the Senate would deal a serious blow to presidential prestige. Therefore, the president will typically be careful not to choose nominees who might harm his reputation.

In considering this topic, Hamilton warns against extremes: "this supposition of universal venality in human nature" is little less mistaken than "the supposition of universal rectitude." Even in the British House of Commons, which has been long accused of venality, one can find public-spirited and independent men, Hamilton declares.

Essay 77: The Appointing Power Continued and Other Powers of the Executive Considered

This paper stands last in the series on the presidency, which began with Essay 67. Here, Hamilton rejects the notion that the Senate will exercise undue influence in presidential appointments. He also rejects the idea that the president will have undue influence on the Senate.

Hamilton repeats the notion that blame for a bad nomination would harm the president's reputation. He adds the censure for rejecting a good nomination would injure the image of the Senate.

Hamilton also discusses the system of government appointments in the state of New York, where the governor, accompanied by a small council, selects state officials. Hamilton takes a dim view of this system, which he criticizes for favoritism and corruption.

Hamilton closes the essay by summing up the new Constitution's provisions for the presidency as containing energy and satisfying the requirements of safety and responsibility.

Essay 78: The Judiciary Department

This paper initiates the discussion of the judicial branch of government, a topic occupying six essays of The Federalist Papers. Hamilton briefly reviews the three branches of government—legislative, executive, and judicial—and summarizes their functions. He stresses that the independence of the courts is essential, and he emphasizes judicial tenure of office during good behavior. Despite the fact that courts are needed for all sorts of reasons—to adjudicate conflicts of laws, for example, or to determine if a law is consistent with the Constitution—it is still the case, according to Hamilton, that the judicial branch is the weakest of the three branches of government. Hamilton also observes that, since good judges with the requisite skills are few in number and hard to find, their retention on a permanent basis during good behavior is extremely desirable.

Analysis

It is interesting to compare Hamilton's extended treatments of the appointments process in Essays 76 and 77 with an overview of appointments in the contemporary presidency. About a year after writing these essays, Hamilton was appointed by President George Washington as the first secretary of the treasury. Washington's inner circle of advisors was, in effect, the first cabinet—although the Constitution does not use that term. In fact, the closest the Constitution comes to the concept of a cabinet is the mention in Article 2, Section 2 of the president's ability to request an opinion in writing from each of the principal officers of the executive departments: see the reference to this clause in Essay 74.

Today, cabinet officers appointed by the president and confirmed by the Senate are among the most powerful officials of the executive branch. Although many cabinet officers have accumulated significant experience in specialized fields—experience that may be expected to help them perform well as cabinet secretaries, or heads of departments—other cabinet appointments are widely viewed as political "paybacks" for support during the presidential campaign. The same may be said of ambassadors, broadly speaking. Some are career officers from the State Department, while other appointments are politically motivated.

Despite these differences between then and now, Hamilton's main ideas about the appointments process remain admirably applicable. The president, he declares, will be careful not to present bad nominations to the Senate, since that body's rejection will harm the presidential reputation. Meanwhile, the Senate, while it may restrain and check the president, will be careful not to reject good nominees.

Hamilton's treatment of the judiciary, which begins in Essay 78, must be read in the context of the times. The framers of the Constitution were blazing a new trail in Article 3 of the document, which provided for a judicial branch of government. The Articles of Confederation had authorized no permanent judicial branch. When Hamilton writes of the judiciary as the weakest branch of government, then, it must be understood that this institution, unlike the legislature, had no precedents. In fact, the first Supreme Court, as constituted by the Judiciary Act of 1789, had six members. The numbers fluctuated throughout American history, stabilizing at nine in 1869.

Hamilton makes a landmark statement in Essay 78: "No legislative act, therefore, contrary to the Constitution, can be valid." This comment foreshadows the doctrine of judicial review enunciated by Chief Justice John Marshall 15 years later in the case of Marbury v. Madison (1803). In his decision Marshall declared it was the province of the Supreme Court to determine if a law is, or is not, constitutional—that is, in conformity with "the supreme law of the land." Interestingly, the Constitution itself gives the Supreme Court no such power.

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