It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the first of six essays by Hamilton on this issue.

In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life.

There was little concern that the judiciary might be able to overpower the political branches; since Congress controlled the flow of money and the President the military, courts did not have nearly the same power from a constitutional design standpoint.

The fundamental debate that Hamilton and his Anti-Federalist rival "Brutus" addressed was over the degree of independence to be granted to federal judges, and the level of accountability to be imposed upon them.

Several scholars believe that the case of Rutgers v. Waddington "was a template for the interpretive approach he [Hamilton] adopted in Federalist 78.

"[1][2][3] In England, although most agents of the Crown served "at the pleasure of the King," public officials were often granted a life tenure in their offices.

[5] Lesser lords were given the authority to bestow life tenure, which created an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security.

[6] Without some kind of effective control upon their conduct, this would engender intolerable injustice, as the King's ministers would be free to 'vent their spleen' upon defenseless subjects with impunity.

The English solution to this problem was to condition the holding of office upon good behavior, as enforced by the people through the writ of scire facias.

"[9] As the remedy of the writ of scire facias was available in every one of the colonies,[10] its efficacy as a deterrent against abuse of judicial office was assumed rather than debated.

The primary point of contention between Hamilton and Brutus was in the concern that judges would substitute their will for the plain text of the Constitution, as exemplified by the Supreme Court's de facto revision of the Eleventh Amendment.

... To avoid 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 that comes before them.Brutus pointed out that the Constitution did not provide an effective mechanism for controlling judicial caprice: There is no power above them, to control any of their decisions.

It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.

It also asserts that judgment needs to be removed from the groups that make the legislation and rule: It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.

78 argues that the power of judicial review should be used by the judicial branch to protect the liberties guaranteed to the people by the Constitution and to provide a check on the power of the legislature: [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.