John Parillo: Federalist 79; More on the Judiciary

After Hamilton’s introduction to the Judiciary in Federalist 78, he digs a bit deeper into the subject here.  We see some of the same reasoning on compensation that we saw back when discussing the President.  The Founder’s concern was that to control a man’s subsistence is to control his will.  While the permanence of the Judicial positions provides some defense from the other branches of government, the Founders clearly did not want the power of the purse, firmly in the hands of Congress, to be used against the Judicial branch.  The solution is much the same as they used with the Presidency in that the legislature is unable to reduce the compensation of Justices for the duration of their service. 

It is important here to take a moment and contemplate why this was important to our Founders.  The concept of getting wealthy while serving in government would never have occurred to them.  There were not a great number of governmental positions to begin with and the compensation for serving was modest.  That made the inability of one branch to maliciously influence the compensation of another branch a critical rule to ensure independence between them.  Of course, they could have just fixed the amount Constitutionally but in another observation from Hamilton that could be directed to us today, “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.”[1]   Hamilton uses this issue as a way to discuss the difference between Presidential and Judicial compensation.  Since the Presidential term is four years, renewed at the discretion of electors, it is unlikely that the difference in the value of compensation during that period of time could cause significant hardship.  But for a lifetime appointment it might actually matter. 

On the other hand, Justices who exceed their Constitutional authority are not untouchable.  The same impeachment procedure that holds for the President is applicable here.  Justices are subject to impeachment by the House of Representatives, and if convicted by the Senate, are subject to removal from office.  The bar for Judicial removal is just as high as it is for the President and this was designed to keep this least powerful branch from being unjustly attacked.  The legitimacy of the courts is a crucial aspect of our republic. While the Judicial branch has no authority to make laws, it has the final say on whether a law, passed by Congress and signed by the President, violates the Constitution.  While limited, that power is critical to ensuring that neither of the other two branches violate the rights of citizens under the Constitution. 

In another interesting paragraph, Hamilton explores the possibility that since Justices are appointed for life, there may come a time when their faculties are so diminished that they should be removed from office.  To this he raises two objections.  The first is that it is more likely that the provision would not be used, or would be misused, than that it would be used properly.  And secondly, the ability to determine a Justices’ mental fitness simply does not yet exist.  “The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts.”  In the absence of a process for determining mental fitness, it is impossible to make that a requirement.  Thus, with the exception of “insanity”, any such determination would likely be arbitrary.  

Hamilton’s home state of New York solved this problem by simply setting an arbitrary age of 60 as the maximum age that a Justice can serve.  This is objectionable to the Founders for several reasons.  The first is that “The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it”.  In addition, if a Justice has served well until age 60 there were, at the time, not many alternatives for livelihood beyond that point.  It would make no sense to make pensioners of these same people in a Republic where “fortunes are not affluent”.  No, Hamilton is clear that it is better to let Justices continue to serve than it is to create a system to avoid the “imaginary danger of a superannuated bench.”  He is in favor of allowing the wisdom of those with experience to continue to serve their country. 

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[1] All quotes are from https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493464

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