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Federalist No. 79

Federalist No. 79, by Alexander Hamilton, is the second of five essays about the structure and role of the judicial branch.  In this one, Hamilton outlines how judges should be paid under the new government.  He asserts, a power over a man’s subsistence amounts to a power over his will, a profound and realistic observation with application beyond the judiciary.  He also discusses the provision for judges removal from office which includes the somewhat confusing concept of “good behavior.”  Wikipedia provides a good discussion of this idea, which is derived from English judicial tradition.

The only basis for removing judges in the new government would be for “malconduct,” not maintaining “good behavior”.

violations of good behavior tenure at common law included “abuse of office, nonuse of office, and refusal to exercise an office,” and the “oppression and tyrannical partiality of judges, justices, and other magistrates…

To the People of the State of New York:

NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man’s subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”

Other than lifetime tenure the next most important thing to secure an independent judiciary is to provide for a fixed level of pay. The situation for judges is similar to that already discussed regarding the presidency.  (In Federalist 73, Hamilton examines the mechanism and justification for how presidents are to be paid.) Since control over what a man can earn is control over that man, any system in which the legislature sets the salaries of the judiciary makes the independence of the latter unworkable.  This issue has caused a lot of angst in many of the states for its lack of definition in their constitutions.  Some have suggested that the remedy is that permanent fixed salaries should be set for judges. However, where this has been tried, there have still been cases where the legislature bends the rules.  There has to be something more definite and unequivocal.  That is what those at the (Constitutional) convention had in mind when they wrote that judges of the United Statesshall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.

This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.

This is the best solution that could have been devised. There is no way that a completely fixed rate of pay would work, given inflation. What might seem like an exorbitant and extravagant paycheck today, might over the course of 50 years be woefully inadequate. Consequently there has to be some provision for adjusting the rate of pay based on current economic conditions, but at the same time prevent the legislature from reducing the compensation of any sitting judge.  This being the case, a judge should be assured of his position and livelihood and less susceptible to coercion for fear of reprisal.  There is, of course, a difference between how the President and judges are to be compensated. The President’s salary can neither be increased nor reduced while in office. Judges’ salaries may not be reduced.  The reason for this is the difference in length of term. Since the President is elected only for 4 years, it’s unlikely that economic conditions would change enough in that interval to make his salary inadequate.  However, as long as they adhere to “good behavior,” judges are appointed for life. Therefore, if their salaries were set at the beginning of their service, they might well be insufficient by the end. This is especially true at the beginning of this new government.

This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.

This system of compensation, when coupled with permanent tenure, will ensure the independence of the judiciary better than any system devised in any of the States for their judges.

The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.

As specified in the new Constitution, the only check consistent with the independence of the judiciary is that judges may be impeached for misconduct by the House of Representatives and tried by the Senate. Upon conviction they would be dismissed from office and barred from holding any other.

The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.

There have been complaints (see anti-Federalist writer Brutus’ 15th essay) about the lack of a mechanism for removing judges. However, common sense dictates that such a mechanism would be highly susceptible to abuse. The danger of this outweighs any benefit. There is no reasonable way to determine qualifications impartially.  Such determinations of capability would fall prey to personal or party agendas and do little to further justice. Unless a judge is clearly insane, arbitrary judgements as to job performance should be avoided.

The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.

New York’s constitution attempts to resolve this issue by setting an upper limit of 60 years on judges.  Most people think this is appropriate. But it is not appropriate when it comes to judges. The ability to deliberate and think doesn’t suddenly end at age 60.  Few people live longer than their cognitive abilities. If this were to be a problem, it is hard to imagine it would affect a significant number of sitting judges at any one time. We live in a republic where huge fortunes are rare and there is no provision for pensions. It would be unjust and impractical to dismiss faithful government servants with distinguished service, who depend on the government for their livelihood.  Dismissing them at an arbitrary late age would make it impossible for them to earn a living by starting another occupation so late in life. Imagined fears of pervasive judicial infirmity is not justification for this practice.

PUBLIUS

1 Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13.

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