Essay • 1788

Federalist No. 78

Alexander Hamilton (Publius)

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Hamilton's 1788 essay establishes the case for an independent judiciary with the power to strike down unconstitutional laws — judicial review. He calls the judiciary 'the least dangerous branch' because it controls neither sword nor purse, only judgment. Marshall would cite this essay in Marbury v. Madison fifteen years later.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive holds the sword, the Legislature commands the purse — the Judiciary has neither force nor will, but merely judgment.

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