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Federalist No. 78

Federalist No. 78 was published on June 14, 1788 in New York’s Independent Journal.

Each of the Federalist Papers was written to explain, promote, or rebut arguments against, the new government outlined in the Constitution.No. 78 was written by Alexander Hamilton to explain and justify the structure and role of the federal judiciary.  In it he argues for lifetime tenure for federal judges based on good behavior.  He also establishes importance of an independent judiciary and the precedence of the Constitution over statutory law.

Hamilton was a lawyer by trade and incredibly well-read.  As participant in the Constitutional convention, he had unique insight into the intent and meaning of the new Constitution.  He drew upon his knowledge of English law, his reading of the histories of the republics of antiquity, and the discussions that resulted in the drafting of the Constitution.

Federalist 78 was written in part to rebut the arguments of an anti-Federalist writing under the pseudonym Brutus.  This was probably Robert Yates, one of two other convention delegates from New York (both of whom left in protest prior to the completion of the Constitution, leaving Hamilton as New York’s sole delegate).  In this essay, Hamilton addresses some of the issues raised by Brutus in his 11th anti-Federalist article, dated January 31, 1788.  In particular Hamilton rebuts Brutus’ arguments concerning what he viewed as the unlimited power of the Judicial Branch, the lifetime tenure limited only by lack of “good behavior,” and the scope of Federal judicial power.

Federalist No. 78

To the People of the State of New York:

WE PROCEED now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.   It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.

This essay will be an examination of the judicial system as outlined in the Constitution of the proposed government.

Despite the shortcomings of the Articles of Confederation, the value and need of a federal judiciary should be obvious.  Even though this department of government may not have functioned well under the Confederation, the concept of a federal judicial system is still sound.  The debate instead revolves around the scope and structure of the courts, rather than their necessity.  Consequently, this essay will deal with former.

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility.

With regard to the structure of the judiciary, there are several aspects.1st, the method of appointing judges; 2nd, their length of tenure; and 3rd, how authority is to be divided between the courts and how they should deal with one another.

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State.  Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments.  The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.  In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.  And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

The system devised in the Constitution stipulates that judges should hold office for life, based on good behavior.  This tradition is consistent with most State constitutions, and also to that of New York.  The appropriateness of such a system has been called into question by opponents of the new Constitution.  Their opposition on this point is symptomatic of their irrational anger over the larger issue of ratification.  The standard of “good behavior” as the measure for allowing judges to remain in office has been proven to be one of the most significant advancements in the practice of government.  In a monarchical system it has been shown to prevent despotism on the part of the king, and in a republic it provides a wall preventing the representative body from stepping outside of its purview.  It is simply the best method yet devised of ensuring that the rule of law is fairly enforced.

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 not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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 may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Close examination of the design of the branches of government (outlined in the new Constitution), shows that the separation of powers ensures that the judiciary will always be the least dangerous threat to the system.  Because of the nature of its functions, it has the least ability to do harm.In comparison, the executive branch has the power to implement laws and wields the military authority of the nation.  The legislative branch is in charge of the purseand makes the laws.  The judicial branch, on the other hand does not disburse funds, does not control the military, can’t tax, and in general has no power to enforce anything on its own.Since it has neither “Force nor Will,” it must rely on the executive branch to enforce its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. 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. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Consequently, this provides incontestable proof that the judicial branch is by far the weakest of the three branches.  There is no way that it can ever be successful in challenging the authority of the other two.  Conversely, if anything, the opposite is true.  It must remain vigilant to defend itself against their encroachments. Likewise, though there may be the occasional unfair ruling against the rights of an individual, the rights of individuals are not generally in jeopardy from the judicial branch; provided that the separation of powers remains in force so that the other branches don’t meddle in judicial decisions.Should this separation of powers not remain, then liberty cannot exist.  Finally, by being structured in this way, the judicial branch by itself is fundamentally incapable of endangering liberty, but should it be combined with either of the other two branches it would of course be overwhelmed by them.  Due to its inherent weakness, a judicial branch partnered with either branch would immediately become wholly dependent on the other branch.The combination of independence and permanency of office is the indispensable element in the design of the judicial branch.  It is what will enable this branch to be “the citadel of the public justice and the public security.”

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The independence of the Judiciary is key in a limited Constitution.  What is a “limited Constitution”?It is one which specifies exceptions to legislative authority.For example, the legislative branch is prohibited from passing bills of attainder, (a legislative act that singles out an individual or group for punishment without a trial) ex post facto laws,(laws that criminalize conduct that was not a crime when it was committed, increases punishment for a crime beyond what it was at the time the act was committed, or deprives a person of a defense available at the time the act was committed), and the like.There is no other way to prevent these practices other than by the courts.  It is the duty of the Judiciary to declare laws that implicitly or explicitly contradict the Constitution to be void.If the judicial branch did not have this power, then the rights and privileges reserved (for the people) by the Constitution would be meaningless.

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. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is consternation about the ability (and necessity) of the Judiciary to pronounce legislation void when it contradicts the Constitution.  This argument is built upon the theory that if the judicial branch can undo the acts of the legislative branch, it would be superior.  Because this is such an important aspect of the new Judiciary, in even the existing State constitutions, no one should contest the necessity of discussing the reasons for it, at least briefly.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Note:The above is an example of how densely Hamilton packs his arguments and how the subtle shifts in word meanings can require multiple readings to absorb. Hamilton is drawing a point from the general to the specific.He begins by explaining the general principle that a subordinate authority can never supersede its superior.He uses the concept of a military commission as his example.If a person or body is “commissioned” to act within a specific framework, anything it does outside of that framework is by definition, outside of its purview.

It should be obvious that in delegating authority, any action taken that contradicts the purpose for delegating that authority is void.  It is the same with any law enacted by the legislature.  The Constitution is the supreme law of the land and, as the blueprint for the new government, it delegates power to Congress for the purpose of enacting laws which are compatible with it.  If a law contradicts the Constitution, it must therefore be void.To argue otherwise is like saying that a deputy is greater than his superior; a employee above his boss; that the representatives of the people are superior to the people themselves; or that those in government can do things outside of the powers authorized, and even things expressly prohibited.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. 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 interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

The Constitution does not say in any of its provisions that the legislative branch can decide the extent of its own authority and that this interpretation is binding on the other branches.  It cannot be supposed that the Constitutionintends to enable the representatives of the people to impose their will over their constituents’ will.  It makes more sense to suppose that the courts were intended to act as an intermediate body between the people and the legislature.  This structure, among other things, ensures that the legislative branch does not exceed its authority.Interpreting laws is properly the role of the courts.  The Constitution is and must be regarded by judges as fundamental law.  Therefore it is up to them to determine its meaning, as well as the meaning of any particular law enacted by of legislative branch.  Should there be an irreconcilable difference between two laws, the law that has superior place and validity wins.In other words, the Constitution should always prevail over the statute, just as the intention of the people should take precedence over that of their representatives.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where 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. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This conclusion does not suppose that the judicial branch is in any way superior to the legislative branch.It only assumes that the power of the people is superior to both.  The will of the Legislature is expressed in the legislation it produces.  The will of the people is expressed via the Constitution.  Where laws passed by the legislative branch stand in opposition to the Constitution, e.g. the will of the people, judges should base their rulings on the Constitution rather than the statute.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

The exercise of judicial discretion in determining between two contradictory laws is a common-place occurrence.  It is frequently the case that there are two statutes in place at the same time that clash, either in whole or in part with each other, and neither contains any provision for repeal or exception. In this case, it is the duty of the courts to make a determination as to the meaning and function of these statutes.If the laws can reasonably be reconciled with one another, then that is what common sense and legal precedence dictate should be done.  Where they cannot be reconciled, it is necessary to pick one and void the other.  Common practice is for the courts to give preference to the most recent law. But, this is not a legal principle, but rather a custom derived from expedience based on the reasoning of the judge.  It is not a legal rule stipulated by legislation, but one adopted by the courts themselves, as part of their role as interpreters of the law.  It seemed reasonable, when deciding between two contradictory legislative acts of EQUAL authority, to give precedence to the most recent expression of legislative will – the newest law.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

But when a particular statue is contrary to the Constitution, the original authority (the Constitution) must take precedence over the derived authority (legislative acts).  This is only natural and reasonable.Reason and nature dictate that the prior commands of the superior always takes precedence over those of the subordinate.  It follows that whenever a particular statute conflicts with the Constitution, “it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

There is no validity to the argument that the courts might substitute their own preferences for the constitutional intentions of the legislature.  If this is the case then this could happen in the case of two contradictory statutes, or for that matter in every ruling on any statute.  The courts have to determine the “sense of the law”.If they are going to exercise WILL instead of JUDGMENT, then that is the same thing as subverting the will of the legislature to theirs anyway. This argument proves nothing really, unless it be an argument for combining the judiciary with the legislature.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

So, if the courts are indeed the bulwarks of a limited Constitution against the tyranny of the Legislature, then this is a strong argument for lifetime tenure.  No other aspect of the system will have as positive an effect as maintaining the independence of the judiciary so that they can perform their difficult role.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

This independence of the judges is equally required to guard both Constitution and the rights of individuals from”dangerous innovations” occasionally devised by the legislature.  These “innovations” tend to result in serious oppression of the minority by the majority in the community.  They can come from devious self-interested individuals or even popular misconceptions held by the people themselves, which are generally dispelled over timewith better information.  The proponents of the new Constitution will probably never concur with its adversaries in questioning the fundamental principle of republican government which is that the people have the right to alter or abolish the Constitution whenever they find it inconsistent with their happiness.  However, it does not follow from this principle, that the representatives of the people should succumb to momentary inclinations of the majority which are in conflict with the provisions of the existing Constitution.  Provisions that stem from “momentary inclinations of the majority” and which violate the Constitution are not justified nor are the courts obligated to collaborate in accepting such infractions any more than they should if the provisions came directly from cabals in the legislative branch.  Until such time as the people have by some solemn and authoritative act, annulled or changed the established Constitution, the Constitution is binding.  It is binding on them both collectively and individually.  No knowledge or presumption of their will can justify deviation from it by their representatives prior to such an event.But it is easy to see, that the judges will require extraordinary discipline and character to fulfill their duty as “faithful guardians of the Constitution,” in cases where the will of the people is expressed in the form of”legislative invasions.”

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

The independence of judges not only safeguards against infractions of the Constitution when the majority succumbs to such “occasional ill humors” (e.g. ill-considered preferences based on rumor or misconception).  Such ill humors sometimes result only as far as in harming the private rights of particular classes of citizenry via partial and unjust laws. In this instance, the firmness and quality of the judiciary is key in diminishing the severity and limiting the operation of such laws.  The courts not only moderate andaddress the immediate problems of laws that are passed, but serve as a check on the legislative branch.  The legislative Branch, knowing that their work will be scrutinized by the Judiciary, are compelled to be more specific in their legislation to avoid difficulties with the courts. Manyare unaware of the significance of this fact.  Many States have benefited from the moderation provided by an honest court.Those whose sinister plans were stopped by the courts might complain, but the virtuous and those without special interest have been well pleased.  Thinking people everywhere should value anything that contributes to an impartial and honest court system, since no man can be certain that tomorrow he may not be the next victim of an injustice that benefits him today.  It should be obvious that injustice saps the foundations of public and private confidence and replaces them with universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

These indispensable attributes of the judiciary – inflexible and uniform adherence to the rights of the Constitution and individuals, cannot be expected from judges who hold office only for limited terms.Periodic appointments, regardless of how well regulated, or by whomever made, would create obligations and make their independence impossible.  Should judges be appointed exclusively by the Executive or Legislative Branch, there would be a risk of creating an obligation to that branch.If appointed by both, then judges would be reticent to anger either with their rulings.Similarly, if Judiciary were chosen by the people, there would be too great tendency to pay attention to short term popular will.  In any of these scenarios, it would be difficult to ensure that decisions were based on nothing but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. 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 that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

There is another important reason for the permanent tenure judges.  This is evident from the nature of the qualifications they require.It is often noted that a huge code of law is a necessary evil connected with the operation of a free government.  To avoid arbitrary decisions by the courts, it is essential that they should be limited by strict rules and precedents which they can draw upon.  Because of the well-understood folly and wickedness of mankind, there will by necessity, be a lot of court cases.  The precedents that evolve out of them will require long and laborious study in order to acquire a competent knowledge of them.  Consequently there will be very few in society who will have enough skill to qualify them to serve as judges.  When the limitations of human character and the fact that smart doesn’t equal good, is taken into account, then the number of qualified people shrinks even further.  When this is all considered, it can be seen that it would be hard to persuade people of fit character to accept a temporary position and forfeit a lucrative law practice.  This situation would have a tendency to put the administration of justice into the hands of less qualified people.  At the present time this issue is inordinately significant (due to the present population and demographics), however, it is less significant that the other justifications for lifetime tenure.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

In conclusion, there is no doubt that those in the Constitutional convention were wise in copying from the models of other constitutions which provided for lifetime tenure based on good behavior.  Had they done otherwise the whole plan of government would have been inexcusably defective.  The experience of Great Britain shows how well this mode of tenure works for the Judiciary.


1. The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” — Spirit of Laws. Vol. I, page 186.

2. Idem, page 181.

3. Vide Protest of the Minority of the Convention of Pennsylvania, Martin’s Speech, etc.


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