The Federalist Papers: No. 79
At about this time in 1788, Alexander Hamilton (a.k.a. Publius) was writing Federalist Paper No. 79. His essay would later appear in a bound volume with other Federalist essays (see below). This paper examines the judiciary created by the Constitution.
What constitutional provisions will safeguard the independence of judges? In the prior paper, Hamilton defended life tenure for judges because it contributes to their independence. This paper defends a “fixed provision for their support” for the same reason.
“A POWER OVER A MAN’s SUBSISTENCE,” Hamilton observes, “AMOUNTS TO A POWER OVER HIS WILL.” How can the legislative and judicial functions be separate if judges are dependent upon Congress for their material well-being? Thus, the Constitution provides that judges’ salaries “shall not be DIMINISHED during their continuance in office.” Given the “fluctuations in the value of money and in the state of society,” Hamilton believes that this is the best provision that could be devised.
Such provisions enable judges to be independent, but (naturally) we don’t want them to be **too** independent. They should be held accountable for their actions, and the Constitution makes provision for that as well: Judges “are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate.” Hamilton believes that the impeachment process provides a process for ensuring judicial responsibility, even as it leaves the independence of judges intact.
Hamilton disagrees with a provision allowing judges to be removable based on “inability.” Such a provision would be politicized and liable to abuse. People would claim that a judge’s ability is waning, but the claim would be grounded on “personal and party attachments,” not the “interests of justice or the public good.”
Finally, Hamilton does not believe that a judge should be automatically disqualified because of age. He does not believe that men “outlive the season of intellectual vigor” by too much. And a judge, of all occupations, should not be disqualified by age. New York has a provision that limits judges based on age; Hamilton believes that “there are few at present who do not disapprove of this provision.”
Logistical note for those who care:
As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).