Publius on Constitutional Interpretation in "Federalist 78" and "Federalist 81"


G. Stolyarov II

See Mr. Stolyarov's Index of Selected Writings, Originally Published on Associated Content / Yahoo! Voices.
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Note from the Author: This essay was originally written in 2006 and published on Associated Content (subsequently, Yahoo! Voices) in 2007, where it subsequently received over 1,000 views. To preserve a record of my writings following the shutdown of Yahoo! Voices in 2014, I have given this article a permanent presence on this page.

~ G. Stolyarov II, July 26, 2014

The text of the Constitution does not specify who has the ultimate authority in interpreting the Constitution nor what specific guidelines should be used in the interpretation. Thus, these questions have been subjects of considerable debate since the Constitution's adoption.

According to Federalist 78, "the interpretation of the laws is the proper and peculiar province of the courts." This province extends to the Constitution, which is the fundamental law of the land; thus, the courts have the power to interpret the Constitution and ascertain its meaning as well as the meaning of any legislative acts brought before the courts. Only the institution of independent courts whose judges hold their offices during good behavior can, according to Publius, effectively safeguard a limited constitution against legislative encroachments; this is because a limited constitution contains specified exceptions to the legislative authority - and to ensure that these exceptions are honored, some body independent of the legislature is needed to declare void "all acts contrary to the manifest tenor of the constitution" (Fed. 78).

Publius argues that "every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void," and thus no legislative act contrary to the Constitution can be valid (Fed. 78); a denial of this would in effect imply that a delegated authority may exercise powers which were not delegated or even explicitly forbidden to it. Whenever the courts are faced with a statute which conflicts with the Constitution, they should uphold the Constitution and declare the statute void, since the Constitution is a prior act of a superior authority - the people of the United States - while the statute is a subsequent act of a subordinate authority-the people's representatives.

In interpreting the Constitution, the courts should be careful not to let their will determine the outcome, rather than their judgment. If the will of the courts is allowed to be the reason why a statute is upheld or overturned, then the Constitution will not be protected-but rather "the consequence would equally be the substitution of [the courts'] pleasure to that of the legislative body" (Fed. 78).

In Federalist 81, Publius argues against the legislative or any part thereof being a constitutional interpreter of last resort - as under the British system. First, it would be absurd to expect some of the same men who have made the laws in question to uphold the Constitution when functioning as judges while they had violated it when functioning as legislators. Furthermore, legislators hold their offices for a limited duration - which gives them a "temporary and mutable constitution," not as well suited for upholding the Constitution as service during good behavior. Finally, the justices of the courts are selected on the basis of their knowledge of the laws, acquired through long and laborious study, whereas the legislators often lack such expertise; it would be absurd to subject the former to the latter in matters of interpreting the laws and the Constitution (Fed. 81).

Gennady Stolyarov II (G. Stolyarov II) is an actuary, science-fiction novelist, independent philosophical essayist, poet, amateur mathematician, composer, and Editor-in-Chief of The Rational Argumentator, a magazine championing the principles of reason, rights, and progress. 

In December 2013, Mr. Stolyarov published Death is Wrong, an ambitious children’s book on life extension illustrated by his wife Wendy. Death is Wrong can be found on Amazon in paperback and Kindle formats.

Mr. Stolyarov has contributed articles to the Institute for Ethics and Emerging Technologies (IEET), The Wave Chronicle, Le Quebecois Libre, Brighter Brains Institute, Immortal Life, Enter Stage RightRebirth of Reason, The Liberal Institute, and the Ludwig von Mises Institute.

In an effort to assist the spread of rational ideas, Mr. Stolyarov published his articles on Associated Content (subsequently the Yahoo! Contributor Network and Yahoo! Voices) from 2007 until Yahoo! closed this venue in 2014. Mr. Stolyarov held the highest Clout Level (10) possible on the Yahoo! Contributor Network and was one of its Page View Millionaires, with over 3,175,000 views. Mr. Stolyarov’s selected writings from that era have been preserved on this page.

Mr. Stolyarov holds the professional insurance designations of Associate of the Society of Actuaries (ASA), Associate of the Casualty Actuarial Society (ACAS), Member of the American Academy of Actuaries (MAAA), Chartered Property Casualty Underwriter (CPCU), Associate in Reinsurance (ARe), Associate in Regulation and Compliance (ARC), Associate in Personal Insurance (API), Associate in Insurance Services (AIS), Accredited Insurance Examiner (AIE), and Associate in Insurance Accounting and Finance (AIAF).

Mr. Stolyarov has written a science fiction novel, Eden against the Colossus, a philosophical treatise, A Rational Cosmology,  a play, Implied Consent, and a free self-help treatise, The Best Self-Help is Free. You can watch his YouTube Videos.Mr. Stolyarov can be contacted at

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Learn about Mr. Stolyarov's novel, Eden against the Colossus, here.

Read Mr. Stolyarov's new comprehensive treatise, A Rational Cosmology, explicating such terms as the universe, matter, space, time, sound, light, life, consciousness, and volition, here.

Read Mr. Stolyarov's new four-act play, Implied Consent, a futuristic intellectual drama on the sanctity of human life, here.