WE NOW EXAMINE THE JUDICIAL DEPARTMENT of the United States.
The manner of constituting embraces three main objects:
1st. The mode of appointing judges.
2d. The tenure by which they are to hold their places.
3d. The partition of the judicial authority between different courts, and their relations to each other.
Judges Are Appointed in the Same Manner as Officers of the United States
As to the mode of appointing judges, it is the same as that of appointing officers of the United States in general, and has been fully discussed in Federalist 76 and Federalist 77.
Judges Are to Hold Office During Good Behavior
Second, the tenure by which the judges are to hold their places chiefly concerns their duration in office, the provisions for their support, and the precautions for their responsibility.
According to the plan of the Convention, all judges who may be appointed by the United States are to hold their offices during good behavior.
This standard conforms to the method used in the state constitutions held in the highest repute, and is one of the most valuable modern improvements in the practice of government.
In a monarchy, it is an excellent barrier to despotism of the prince.
In a republic, it is a no less excellent barrier to encroachments and oppressions of the representative body.
It is the best expedient to secure a steady, upright, and impartial administration of the laws.
The Judiciary Is the Weakest of the Three Branches of Government
In a government where the different departments of power are separate from each other, the judiciary will always be the least able to annoy or injure the political rights of the constitution.
The executive not only dispenses the honors, but holds the sword of the community.
The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen to be are regulated.
The judiciary, on the contrary, can take no active resolution whatever.
It has no power over either the sword or the purse, nor can it direct the strength or wealth of the society.
The judiciary has neither force nor will, but merely judgment.
Ultimately it depends upon the aid of the executive arm to enforce those judgments.
The judiciary is beyond comparison the weakest of the three departments of power.
When comparing it to the executive and legislative power, Montesquieu declared “the judiciary is next to nothing.”
Since it can never successfully attack either the executive or legislative branch, all possible care is required to enable the judiciary to defend itself against their attacks.
In a government where the different departments of power are separate from each other, the judiciary will always be the least able to annoy or injure the political rights of the constitution. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen to be are regulated.
Individual oppression may now and then proceed from the courts of justice, but the general liberty of the People can never be endangered from that quarter, so long as the judiciary remains truly distinct from both the legislature and executive.
On the other hand, if the power of judging is not separated from the legislative and executive powers, reasons Montesquieu, “there is no liberty.”
Therefore, we would have everything to fear from the union of the judiciary with either of the other departments, but liberty can have nothing to fear from the judiciary alone.
A union between the judiciary and one of the other two branches could only ensue from the dependence of the judiciary on either of these other branches, notwithstanding a nominal and apparent separation.
Due to the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches.
Nothing can contribute more to its independence and firmness as permanency in office.
This quality is justly regarded as indispensable to its constitution as the citadel of public justice and security.
The complete independence of the judiciary is particularly essential because the Constitution limits legislative authority, such as prohibiting the passage bills of attainder, ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
The Judiciary Has the Power to Declare Legislative Acts Void if Unconstitutional
The complete independence of the judiciary is particularly essential because the Constitution limits legislative authority, such as prohibiting the passage of bills of attainder, ex post facto laws, and the like.
Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.
Without this, all the reservations of particular rights or privileges would amount to nothing.
Some have imagined the right of the courts to pronounce legislative acts void as contrary to the Constitution implies a superiority of the judiciary to the legislature, since the authority to declare the acts of another department void appears superior to the authority of the department whose acts may be declared void.
Having perplexed some, this argument merits consideration.
With respect to the judiciary’s power to declare acts of another department void, it is clear that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.
To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the People are superior to the People themselves, and that those representatives may do not only what their powers do not authorize, but what they forbid.
From these premises, it is apparent that no legislative act contrary to the Constitution can be valid.
With respect to the judiciary’s power to declare acts of another department void, it is clear that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the People are superior to the People themselves, and that those representatives may do not only what their powers do not authorize, but what they forbid.
Congress Does Not Have the Final Say on the Constitutionality of Its Measures
To those who say the legislature is itself the constitutional judge of its own power – and that its judgments are conclusive upon the other departments – I answer that no constitutional provision supports the presumption of legislative superiority to the judiciary in assessing compliance with the Constitution.
The argument is akin to suggesting the Constitution enables the representatives of the People to substitute their will to that of their constituents, even though the Constitution is silent on the point.
Is it not far more rational to suppose that the courts were designed to be an intermediate body between the People and the legislature, in order to keep the legislature within the limits assigned to their authority?
The interpretation of the laws is the proper and peculiar province of the courts.
A constitution is a fundamental law and must be so regarded by judges.
It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between a law and the Constitution, the Constitution ought to be preferred to the statute, for the intention of the People is superior to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.
It only supposes that the power of the People is superior to both.
Where the will of Congress – declared in its statutes – stands in opposition to the will of the People – as declared in the Constitution – the Constitution ought to govern the statute.
In turn, judges ought to regulate their decisions by fundamental laws rather than by those which are not fundamental.
If there should happen to be an irreconcilable variance between a law and the Constitution, the Constitution ought to be preferred to the statute, for the intention of the People is superior to the intention of their agents.
This exercise of judicial discretion is exemplified in cases where two statutes clash in whole or in part with each other, and neither contains any repealing clause or expression.
It is the province of the courts in such a case to liquidate and fix their meaning and operation.
So far as they can be reconciled to each other by any fair construction, reason and law conspire to dictate this should be done.
Where this is impracticable, it becomes a matter of necessity to give effect to one to the exclusion of the other.
In determining their relative validity, the courts usually apply the rule that the statute last in order of time shall be preferred to the first.
This rule is not derived from any positive law enjoined upon the courts by legislative provision.
It is a mere rule of construction adopted by the judges themselves as being consonant to truth and propriety, based on the nature and reason of the thing, for the direction of their conduct as interpreters of the law.
In reviewing the conflicting acts of an equal authority, they have thought it reasonable to give preference to the latest indication of legislative will.
The opposite of that rule should apply in cases where the acts of a superior and subordinate authority conflict.
The prior act of a superior authority ought to be preferred to the subsequent act of an inferior and subordinate authority.
Accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the Constitution and to disregard the statute.
Some might argue this rule permits courts to substitute their own pleasure to the constitutional intentions of the legislative branch.
But the same argument could be made in every case where a court decides between two contradictory statutes, and even where it decides the meaning of a single statute.
Courts must declare the sense of the law in every case, so if a judge should be disposed to exercise will instead of judgment in deciding the intent of a law, said exercise of judicial will effectively substitutes itself for the legislative will, whether the law was founded on the Constitution or a statute.
If the objection proves anything, it would be that there ought to be no judges distinct from the legislature.
A Lifetime Appointment Will Help Secure Judicial Independence
For the courts of justice to stand as the bulwarks of a limited Constitution against the encroachments of Congress, nothing less than permanent tenure of judicial offices is required.
This alone can foster that independent spirit in the judges which is essential to the faithful performance of so difficult a duty.
This independence of judges is equally required to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing individuals (or the influence of particular conjunctures) sometimes disseminate among the People themselves.
Although such ill humors speedily give place to better information and more deliberate reflection, in the meantime they have a tendency to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Although it a fundamental principle of republican government that the People have the right to alter or abolish the established Constitution whenever they find it inconsistent with their happiness, it is not to be inferred from this principle that the representatives of the People would be justified in violating the existing Constitution whenever a momentary inclination incompatible with its provisions happens to lay hold of a majority of their constituents.
Similarly, the courts would be under no greater obligation to connive at infractions in this shape, than had they proceeded wholly from the cabals of the representative body.
Until the People have annulled or changed the Constitution by a solemn and authoritative act, it is binding upon themselves collectively, as well as individually.
No presumption – or even knowledge – of their sentiments, can warrant their representatives in a departure from it.
Nonetheless, it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions had been instigated by the major voice of the community.
This independence of judges is equally required to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing individuals (or the influence of particular conjunctures) sometimes disseminate among the People themselves.
An Independent Judiciary Discourages Legislative Excesses
The independence of judges may also be an essential safeguard against the effects of occasional ill humors in society which do not amount to infractions of the Constitution.
These sometimes extend no farther than to the injury to the private rights of particular classes of citizens caused by unjust and partial laws.
Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.
It not only serves to moderate the immediate mischiefs of those laws which may have been passed, but it operates as a check upon the legislative body in passing them.
Those who perceive that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled to qualify their attempts by the very motives of the injustice they meditate.
The benefits of the integrity of the judiciary is a circumstance calculated to have more influence upon the character of our governments, and its moderating influence already has been felt in more States than one.
Though displeasing to those whose sinister expectations were disappointed, their decisions must have commanded the esteem and applause of all the virtuous and disinterested.
Individual citizens of every description ought to prize whatever will tend to beget or fortify integrity in the courts, for no one can be sure to escape a spirit of injustice which can make a gainer today a victim tomorrow.
And every individual must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
Individual citizens of every description ought to prize whatever will tend to beget or fortify integrity in the courts, for no one can be sure to escape a spirit of injustice which can make a gainer today a victim tomorrow. And every individual must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
Temporary Judicial Appointments Can Undermine Judicial Integrity
Judges who hold their offices by a temporary commission cannot be expected to maintain that inflexible and uniform adherence to the rights of the Constitution – and of individuals – which we perceive to be indispensable in the courts of justice.
Periodical appointments – however regulated or by whomsoever made – would in some way or other be fatal to their necessary independence.
If the power of making temporary appointments were committed either to the executive or legislative branch, there would be danger of an improper complaisance to the branch which possessed it.
If the power were assigned to both branches, there would be an unwillingness to hazard the displeasure of either.
If the power were committed to the People – or to persons chosen by them for the special purpose – there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
A Lifetime Tenure Is Essential to Attracting Qualified Judicial Candidates
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require.
It has been frequently been remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.
To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and to point out their duty in every particular case that comes before them.
Considering the variety of controversies which grow out of the folly and wickedness of mankind, the records of those precedents must unavoidably swell to a very considerable bulk, which in turn must demand long and laborious study to acquire a competent knowledge of them.
Hence it is, that there can be but few individuals in the society who will have sufficient skill in the laws to qualify them for the stations of judges.
And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
These considerations apprise us that the government can have no great option between fit characters.
A temporary duration in office would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench.
It would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity.
In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear.
The experience of Great Britain also affords an illustrious comment on the excellence of the institution of tenure during good behavior.
Hence it is, that there can be but few individuals in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices.
So far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government.
Hamilton