The Federalist Papers and the Federal Judiciary

This lesson provides some suggestions for using The Federalist Papers that apply to the creation of the judiciary. Since the reading level of these essays is quite high, and the essay suggestions all involve reading one or more of The Federalist Papers, this activity will be quite challenging for most students. 

Corresponding Student Center Pages 

• The Ratification Debate 

Suggested Time Needed 

2 class periods, with time outside of class to write essays 

• Materials
• Objectives & Standards
• Procedure
• Activities

• • Copies of The Federalist Papers, #78-83 
  • A: Small Group, Read and Summarize Activity on The Federalist Papers

• This series of primary source activities will require students to read and analyze The Federalist Papers. After doing this assignment students will: 

  • Have a greater understanding of The Federalist Papers and their impact on the ratification debate for the Constitution. 
  • Comprehend the value of primary sources in understanding an historic argument. 
  • Comprehend the Federalists’ arguments pertaining to judicial appointment, life tenure of judges, the creation of inferior courts, judicial independence, and the opposing argument presented by Hamilton in The Federalist Papers.  
  • Be able to use the primary source documents noted to create a scholarly essay based on their interpretation of fact.  

  Guiding Questions 

  • What can The Federalist Papers, and specifically the essays about the federal courts, teach us about the intent of the founders when it came to the courts?  
  • What were the founders’ beliefs about why the members of the federal courts should be appointed and not elected? What did they believe the appointment of judges would ensure, or protect, the U.S. from? What was the “danger” inherent in electing judges?  
  • What is judicial independence, and why is it important? 

  Missouri Course Level Expectations 

  • 9-12.GV.3.CC.A – Explain how the central debates of the Constitutional Convention were resolved. 
  • 9-12.GV.3.CC.B – Explain how concerns over a strong central government were addressed to provide for the ratification of the Constitution. 

• Most of these activities are essay or discussion prompts. They could be edited to provide the foundation for a class debate, be used for assigning essays, or for general classroom discussion to tie a unit on the courts back to the Constitution. You’ll notice some of the arguments to which Hamilton was responding are still relevant today, such as those on the topic of judicial independence, judicial activism, and judicial review. 

  See the Teacher Fact Sheet for additional guidance on using the following activities with students.  

  Conclusion:  

  After completing one or more of these assignments, student should be able to answer the following:  

  • What are The Federalist Papers? 
  • Who was the primary author of those essays specifically devoted to the federal courts?  
  • What are any TWO of the main ideas that Hamilton makes in The Federalist Papers #78-83, about the federal courts?  

  Review the Guiding Questions:  

  • What can The Federalist Papers, and specifically the essays about the federal courts, teach us about the intent of the founders when it came to the courts?  
  • What were the founders’ beliefs about why the members of the federal courts should be appointed and not elected? What did they believe the appointment of judges would ensure, or protect, the U.S. from? What was the “danger” inherent in electing judges?  
  • What is judicial independence, and why is it important? 

• Activity 1: Small Group Read and Summarize Activity on Essay #78 

  For this activity, students will read and summarize Essay #78. They will be asked to use the 3 introductory points made by Hamilton to structure the summary. This will call on students to read and analyze the information, looking for relevant details under each point. Distribute A: Small Group, Read and Summarize Activity on The Federalist Papers.

  Students might work alone or in groups, or begin alone then be asked to compare their responses with a partner or small group. 

  Activity 2: Essay and Discussion Ideas for The Federalist Papers #78- 83 

  The following essay prompts can be used to assign students an essay that asks them to read, analyze, and formulate an argument on an element from The Federalist Papers.  

  Students will need copies of The Federalist Papers, or should be provided with the links to find them online: 

  • The Federalist Papers at The Library of Congress:  http://thomas.loc.gov/home/histdox/fedpapers.html 
  • The Federalist Papers at FoundingFather.info web page, full text, free: http://www.foundingfathers.info/federalistpapers/fedi.htm

  Feel free to cut and paste the prompts into your own document, or onto your own web page so that you can add or remove elements. You may want to add essay guidelines that reflect your own writing and typing guidelines, or perhaps a grading rubric.  

  As an alternate assignment, the prompts could be used as a classroom discussion starters or debate questions. 

  Provide students with the appropriate document and prompt, and allow them time to read and reflect on the answers, then discuss or debate student responses in class.  

  Essay/Discussion Topic: Judicial Independence and The Federalist Papers #78 

  1. One of the main themes in Hamilton’s Essay #78 is “judicial independence” or the necessity that the judicial branch be truly separate from the executive and legislative branches. How does Hamilton make this argument? Do you agree or disagree with him?   
  2. The Constitution helped to ensure judicial independence, in part, by having judges be appointed instead of elected, and by giving them a life term. Using Federalist #78, explain Hamilton’s arguments for appointment of judges and life terms. Why did he think that these things made the judiciary more independent? Why was this independence so important according to Hamilton?  

  Essay/Discussion Topic: Judicial Review, The Federalist Papers #78 

  The Constitution does not directly give the federal courts the power of judicial review. This power was first used by the court in 1803 in the case of Marbury v. Madison. 

  However, in Federalist #78 Hamilton refers to the process when he states: “Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.”  

  Read Federalist #78. Then, in a formal essay, describe Hamilton’s argument in SUPPORT of the power of judicial review. Be sure to:  

  • Define the term judicial review. 
  • Use specific examples (properly documented) from Federalist #78 to support your arguments.

  Essay/Discussion Topic: Judicial power vs. the power of the other branches, The Federalist Papers #78 

  In the course of making his arguments in Federalist #78, Hamilton notes that “. . . the judiciary is beyond comparison the weakest of the three departments of power. . .” and that as such it can “never attack with success either of the other two.”  

  After reading Federalist #78, write a formal essay in which you explain the reasons that Hamilton gave in support of his claims above.  

  • You should also consider whether this statement rings true today, given changes in society (access to information, the media, etc.).  

  Essay/Discussion Topic: The tenure of federal judges and The Federalist Papers #78 

  In Federalist #78, Hamilton notes that one of the “weighty reasons” for the life term of federal judges is the “nature of the qualifications they require.” He goes on to explain that they must know a “voluminous code of laws.” He asserts that to “avoid an arbitrary discretion in the courts it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case . . .” 

  In a formal essay, reflect on Hamilton’s words above and the subsequent argument he makes in Federalist #78. Then formulate an argument that considers the following questions:  

  • What does the amount of legal knowledge that judges possess have to do with the courts making consistent decisions?  
  • Why is this consistency in decision making so important in the federal judiciary? Or any courts for that matter? 
  • How does the life term of federal judges contribute to this consistency?  

  Essay/Discussion Topic: Compensation of federal judges and The Federalist Papers #79 

  In writing Federalist #79, Alexander Hamilton discusses the compensation of federal judges. After reading Federalist #79, write a formal essay in which you describe Hamilton’s argument for:  

  • How the payment of judges is different from that of the president or congress? Why it is acceptable to differentiate for judges? 
  • Be sure to explain clearly the differences in how these officials are paid. 
  • How are salary and the life term of judges linked? What argument does Hamilton make to show that, because judges serve a life term instead of a fixed one, their compensation should differ from the other branches?  

  Essay/Discussion Topic: The Federalist Papers #81 

  1. In Federalist #81, Hamilton addresses Anti-Federalist arguments that the Supreme Court should be a part of the legislative branch. Read the document, and when you are finished write a formal essay in which you present Hamilton’s arguments AGAINST such inclusion. Why did he think it was a bad idea?  
  2.  In Federalist #81, Hamilton warns that putting the judicial function of government in the legislative branch, or putting the Supreme Court in the Congress, was a bad idea. In a brief essay, specifically describe the major problem that Hamilton saw with placing judges with “lifetime tenure” under the leadership of a Congress that served fixed terms. How did he see the amount of knowledge necessary for judges as a contributing factor in this argument?  
  3.  In Federalist #81, Hamilton speaks at length about the “original jurisdiction” of the Supreme Court. Why do you think he felt the need to give so much time to this issue? What “problems” might the Anti-Federalists have had with this particular power of the Court?  
  4. Anti-Federalists argued that having “district courts” (federal courts that were placed within a state), would conflict with the jurisdiction of the state courts. What arguments does Hamilton make in Federalist #81 to counter these concerns?