Posted on 01/27/2011 7:49:24 AM PST by Publius
In this very short essay, Hamilton looks at the rules for compensation of jurists and the conditions for their removal from office.
1 To the People of the State of New York:
2 Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.
3 The remark made in relation to the President is equally applicable here.
4 In the general course of human nature, a power of a man’s subsistence amounts to a power over his will.
5 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.
6 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.
7 Some of these indeed have declared that permanent * 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.
8 Something still more positive and unequivocal has been evinced to be requisite.
9 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.”
10 This, all circumstances considered, is the most eligible provision that could have been devised.
11 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.
12 What might be extravagant today might in half a century become penurious and inadequate.
13 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.
14 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.
15 The clause which has been quoted combines both advantages.
16 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.
17 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.
18 This probably arose from the difference in the duration of the respective offices.
19 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.
20 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.
21 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.
22 The precautions for their responsibility are comprised in the article respecting impeachments.
23 They are liable to be impeached for [misconduct] by the House of Representatives and tried by the Senate, and if convicted may be dismissed from office and disqualified for holding any other.
24 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.
25 The want of a provision for removing the judges on account of inability has been a subject of complaint.
26 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.
27 The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts.
28 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.
29 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.
30 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.
31 No man can be a judge beyond sixty.
32 I believe there are few at present who do not disapprove of this provision.
33 There is no station in relation to which it is less proper than to that of a judge.
34 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.
35 In a republic, where fortunes are not affluent and pensions not expedient, the [dismissal] 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.
[*] Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13.
Hamilton’s Critique
Hamilton restricts himself to two topics in this short essay: the compensation of federal judges, and the conditions under which they may be removed from the bench. Building on the previous essay in which he defended their life tenure “during good behavior”, he now explains the origins of the unique system that provides a specific income at the time of accession to the bench that can never be diminished. It is a provision that helps ensure independence (2), freeing the judges from the threat of being placed in poverty by a Congress angry at a legal judgment (14). The experience of Massachusetts in fixing the compensation of its judges within its constitution has proven inadequate in the face of inflation (7, 11):
20 …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.
For the progress of that service might be a long one indeed. This, Hamilton states, is the reason that the system employed for the compensation of the President, i.e. a fixed salary at the accession to office that may neither be increased nor decreased during his tenure, was not used for the Judiciary.
19 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.
It was a matter largely academic in any case – no President would ever face the prospect of penury as a result of his salary in office. A judge, however, serving for half a century, might.
Having provided for judicial independence by protecting their salaries, Hamilton now moves to the opposite topic: the prospect of removing judges from office should the circumstances warrant, specifically in terms of inability (25). It is, he admits, a difficult thing to measure – mensurate – mental abilities or to provide a benchmark for their decline, and the ability to do so on arbitrary grounds is an invitation to political abuse (29). Nor is age a reasonable criterion, although it is certainly used in the states’ constitutions.
30 The constitution of New York…has taken a particular age as the criterion of inability.
31 No man can be a judge beyond sixty.
32 I believe there are few at present who do not disapprove of this provision.
That was a provision that was to send New York Chief Justice Robert Yates, better known today as the probable identity of the anti-Federalist author Brutus, into retirement in 1798. Adjudication is, says Hamilton, an old man’s game (34) given its requirements for education and experience. The threat of dismissal from office, especially one held for many years by men who had no other source of income, could be more fraught with abuse (28) than the “imaginary danger of a superannuated bench”. (35)
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
7 Mar 1788, Federalist #65
11 Mar 1788, Federalist #66
11 Mar 1788, Federalist #67
14 Mar 1788, Federalist #68
14 Mar 1788, Federalist #69
15 Mar 1788, Federalist #70
18 Mar 1788, Federalist #71
20 Mar 1788, Brutus #15
21 Mar 1788, Federalist #72
21 Mar 1788, Federalist #73
25 Mar 1788, Federalist #74
26 Mar 1788, Federalist #75
1 Apr 1788, Federalist #76
4 Apr 1788, Federalist #77
10 Apr 1788, Brutus #16
5 Jun 1788, Patrick Henry’s Speech to the New York Ratifying Convention #1
7 Jun 1788, Patrick Henry’s Speech to the New York Ratifying Convention #2
14 Jun 1788, Federalist #78
How True.
I had a chat last night with a law student who complained about the older citizens clinging to old standards, that we needed to grow up and accept the changes that marked a modern society. This guy wants to be a judge.
Youth alone is not the answer, age alone is not the problem.
* Given that Supreme Court justices, like Presidents, tended in actuality to be men of independent wealth, was Hamilton’s fear that they might be reduced to poverty by a vengeful Congress justified? Was it more or less significant than the fear that removal from office might be a means for Congress to control Supreme Court decisions?
It could be justified. I’m sure there were historical examples, especially at the time when the judges served at the king’s pleasure. Over time, I think we’ve seen that the need to remove judges happens very infrequently. (Iowa not withstanding) Appointing the right judges to begin with seems to be more of a problem. Doing that is a judgment itself and best left to elected politicians, I think.
* Do improvements in medical science allow us to measure the decline in mental facility enough to be able to remove Supreme Court justices on that ground? Or is that prospect also unfeasibly subject to abuse?
Nope science does not. Not only can’t humans be always trusted to create a perfect test, a human can’t always be trusted to objectively interpret a perfect test.
I cannot think of any way to draft a perfect political test, as the honesty of the tester is a GREAT variable.
Capturing the spirit of Atlas Shrugged
.................................
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.