The Judiciary Department Continued
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
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 PERMANENT [1] 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.”
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 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.
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.
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.
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.
PUBLIUS.

1. Vide “Constitution of Massachusetts,” chapter 2, section I, article 13.

Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.

Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.

As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.

One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.

Alexander Hamilton explains the dangers:

“The judiciary is beyond comparison the weakest of the three departments of power [1]; 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;”

  1. Is our judiciary the weakest of the three departments of power? If it is not, then the general liberty of the people are endangered by the Supreme Court and other courts across America. Is this not evidenced by the Supreme Court’s recent reluctance to uphold the basic fundamental right to bear arms? By one vote, the people of Chicago almost lost this right.

2. We Americans have every thing to fear from the Supreme Court’s union with            the  other two branches of government. Publius wrote the warning in this Federalist Paper 78.

“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;”

Publius further implores the warning:

“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”

“The manifest tenor of the constitution.”

We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.

And we will make sure that our government does so too.

Our power is in our knowledge, our voice and our vote.

Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,

“Manifest tenor of the constitution.”

God Bless,

Janine Turner
Monday, August 16th, 2010

 

Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.

Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.

As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.

One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.

“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”

This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.

Alexander Hamilton explains the dangers:

“The judiciary is beyond comparison the weakest of the three departments of power [1]; 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;”

  1. Is our judiciary the weakest of the three departments of power? If it is not, then the general liberty of the people are endangered by the Supreme Court and other courts across America. Is this not evidenced by the Supreme Court’s recent reluctance to uphold the basic fundamental right to bear arms? By one vote, the people of Chicago almost lost this right.

2. We Americans have every thing to fear from the Supreme Court’s union with            the  other two branches of government. Publius wrote the warning in this Federalist Paper 78.

“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;”

Publius further implores the warning:

“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”

“The manifest tenor of the constitution.”

We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.

And we will make sure that our government does so too.

Our power is in our knowledge, our voice and our vote.

Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,

“Manifest tenor of the constitution.”

God Bless,

Janine Turner
Monday, August 16th, 2010

 

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

A crucial aspect of our republican form of government is an independent judicial branch that cannot be cowed by either of the two other branches. Lifetime tenure – addressed in Federalist #78 – prohibits the president from revoking a judicial appointment should he later come to regret it. And a set salary, which cannot be diminished, keeps the legislature from starving a judge off the bench. This is the topic of Federalist #79.

For the most part, this Paper is relatively straightforward and unremarkable.  The subject matter is not particularly complicated.  If judges are to be as unbiased as possible, they cannot be tempted to adjust their decisions to conform with the views of the current majority in Congress – lest they have their salary cut.

But at least one remarkable aspect of #79 is the evidence it provides of the foresight of the Founding Fathers.  In explaining why the amount of judicial compensation is left to the discretion of Congress, Hamilton notes that the value of money changes over time, and “[w]hat might be extravagant to-day, might in half a century become penurious and inadequate.”  Quite an obvious consideration, but it demonstrates that the authors of the Constitution knew the policies they were establishing had ramifications for years to come and acted accordingly.

This important principle was reiterated about 30 years later by Justice Marshall in M’Culloch v. State of Maryland, 17 U.S. 316 (1819), which determined that Congress has the right to charter a national bank, even though the power to do so is not specifically enumerated in the Constitution.  Justice Marshall reasoned that, so long as it is not prohibited by the Constitution, Congress has the discretion to use such means as needed to further the powers they do have, such as collecting taxes and regulating commerce.

This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Id. at 41 (emphasis added).

Perhaps this willingness to think in terms of decades, centuries, and ages, instead of just the next year or two, is why our form of government has survived relatively unchanged for over 200 years.  The Founders’ foresight is in marked contrast to recent acts of our legislature that are more concerned about appeasing the current constituency rather than doing what’s best for the nation. Our leaders would do well to heed the Founders’ example and do what is right – long term, as well as short term – instead of what is expedient.

Monday, August 16th, 2010

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.