A Provision against Diminution of Judicial Salaries Is Necessary
NEXT TO PERMANENCY IN OFFICE, nothing can contribute more to the independence of the judges than a fixed provision for their support.
In the general course of human nature, a power over an individual’s subsistence amounts to a power over the individual’s will.
We can never hope to see the reality of a complete separation of the judicial power from the legislative power in any system which leaves the judiciary dependent on the legislature for occasional grants pecuniary resources.
The enlightened friends to good government in every State lament the want of precise and explicit precautions on this point, and some have even declared that permanent salaries should be established for the judges.
But experience has shown that such legislative expressions were insufficiently definite to preclude legislative evasions in some instances.
In the general course of human nature, a power over an individual’s subsistence amounts to a power over the individual’s will.
Something still more positive and unequivocal has been evinced to be requisite. The Convention accordingly 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.” Art. III, § 1, cl. 2, emphasis added.
This provision for the support of the judges bears every mark of prudence and efficacy.
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.
Considering all the circumstances, it is the most eligible provision that could have been devised.
A Fixed Judicial Salary Would Be Subject to the Vicissitudes of the Value of Money
Fluctuations in the value of money and the state of society rendered a fixed rate of compensation untenable.
What might seem extravagant today could become penurious and inadequate in half a century.
Thus it was left to the discretion of the Congress 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 judge may then be sure of a financial grounding upon which the judge stands, and can never be deterred from duty by the apprehension of being placed in a less eligible situation.
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.
Unlike the Salary of the President, Judicial Salaries May Be Increased
The compensation of judges and the President differ under the convention’s plan. The compensation of the President cannot be diminished or increased.
The compensation of judges cannot be diminished, but it may be increased.
The difference is based on the tenure of each office.
The President is to be elected for no more than four years.
An adequate salary fixed at the beginning of that period rarely would fail to be such to its end.
But judges will be secure in their offices for life if they behave properly.
A stipend that was sufficient at their first appointment would become too small in the progress of their service.
But judges will be secure in their offices for life if they behave properly. A stipend that was sufficient at their first appointment would become too small in the progress of their service.
Impeachment Will Deter Judicial Misbehavior
The best precaution against the irresponsible behavior of judges is impeachment.
Judges may be impeached for misbehavior by the House of Representatives, tried by the Senate, dismissed from office if convicted, and disqualified for holding any other office.
Since this is only precaution consistent with the necessary independence of the judicial character, it is only one we find in the proposed Constitution.
To those who question the absence of a provision allowing removal of judges on account of inability, due consideration will reveal such a provision is more liable to abuse than to answer any good purpose.
The measurement of the mind’s faculties has as yet found no place in the catalogue of known arts.
Any attempt to fix the boundary between the regions of ability and inability would more often give scope to personal and party attachments and enmities than to advance the interests of justice or the public good.
The result would for the most part be arbitrary, except in the case of insanity, which may be safely pronounced to be a virtual disqualification even without any formal or express provision.
To those who question the absence of a provision allowing removal of judges on account of inability, due consideration will reveal such a provision is more liable to abuse than to answer any good purpose.
In order to avoid such vague and dangerous investigations, the constitution of New York takes a particular age as the criterion of inability: no one can be a judge beyond sixty.
Few approve of this provision, since there is no station to which it is less proper than that of a judge.
The deliberating and comparing faculties generally preserve their strength much beyond that period in those who survive it.
Considering how few outlive their season of intellectual vigor – and how improbable any considerable portion of the bench would be in such a situation at the same time – we can readily conclude limitations of this sort have little to recommend them.
In a republic – where neither salaries are affluent nor pensions expedient – the dismissal of judges 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 one founded in the imaginary danger of a superannuated bench.
Hamilton