Federalist 79
Federalist #79 is a pretty straightforward argument and one of the shorter essays, but there is a layer underneath the central argument that rewards some attention. The relevant Constitutional clause is this: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
Simple enough. The goal here is to help insure judicial independence, by which is (ideally) meant the administration of justice removed from public or political pressures. Members of Congress and presidents have to worry about constituents, but the courts, at least in theory, only have to worry about the parties in front of them. Judicial independence is integral to the administration of justice even if, admittedly, it is open to abuse, particularly if it becomes inordinately difficult to remove judges who abuse their power.
The independent stature of judges was a long-regarded principle of the common law, codified by both Blackstone and practice. Judges, of course, expect to be compensated for their duties, and that’s where things can get tricky. Compensate them too much and it becomes a desideratum for money-grabbers; compensate them too little and they become susceptible to bribery and other forms of corruption. Unlike Article II the Constitution says very little about removing corrupt judges. It speaks of them holding office “during times of good behavior,” but studiously avoids giving any kind of guidance as to what bad behavior might look like. Some delegates at the convention thought this a serious oversight, wanting to include “bribery” among the acts of judicial malfeasance. That doesn’t strike one as a particularly high bar.
Whatever else American republicanism is supposed to be, it’s supposed to be a prophylactic against corruption. One can never purge corruption from politics but one can hope to mitigate it. Dealmaking not only involves unusual compromises but often only works when no one other than the immediate parties knows about it. Skating along ethical edges is a time-honored practice and can be justified, if only sketchily, by reference to the end achieved. I know precious few people who have dotted every “i” and crossed every “t.” There’s a reason “holy men” are often hermits. In any political system, however, there ought to be some sort of counter-balance to a politics too unscrupulous. Preserving the integrity of that counter-balance proves a tricky task. So long as human beings remain corruptible so do their assigned roles. The worst conceit of progressivism was the naive belief it could either make human beings incorruptible or make “systems so perfect that men no longer needed to be good.”
Hamilton banked quite a bit on the belief that the processes of training and appointing judges would mitigate the possibilities of corruption. Perhaps. I think that, on the whole, judge are probably less corrupt than other national politicians, local politicians having greater difficulty being corrupt because their neighbors are watching them. There is, of course, a world of difference between being misguided and being corrupt. I know a lot of stupid local politicians but very few evil ones.
A further question concerning those with lifetime appointments goes to maintenance of their mental faculties. I’ll freely confess that my memory isn’t as sharp as it was 10 or 20 years ago, and I doubt that at this point it will improve. Maybe judges are exceptional for memory, although I doubt it, but in any case failing memory isn’t covered by “good behavior,” nor are certain matters of impulse control. Nor is there any clear line one can point to. Would that there were. Lifetime appointments, as we fully realize, bring with them certain … complications. Hamilton had something to say about this:
“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.”
That said, the inability to draw hard lines shouldn’t result in drawing no lines. The sustained existence of the American gerontocracy ought to concern anyone interested in clear-thinking. I don't know exactly what the sweet spot is for good decision-making, but I’m quite confident it’s not in the 20’s or 30’s and also not in the 80’s or 90’s.
Hamilton argued that “a power over a man’s subsistence amounts to a power over his will,” to which there is an obvious truth. But the permanent existence of a subsistent class hardly seems consonant with republican demands. Max Weber described the difference between living for politics, driven by passion and purpose, and living from politics, where one makes a career out of holding office, Weber clearly considered living from politics as unseemly because, in part, it’s parasitical. Creating a permanent class of people dependent on tax payer dollars creates a distinct interest that operates contrary to the self-sufficiency a democracy counts on.
Hamilton insisted that, since not all persons are affluent, and seeming to have a particular soft spot for lawyers, it would be both unjust and unkind to remove a sinecure just when it was needed most. “In a republic,” he wrote, “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.”
An implicit issue in Hamilton’s presentation involves the interest a man has in holding office, and this proves quite a complicated thing. Service means just a little less when one is handsomely compensated for it. A person dependent for his subsistence on the largesse of another is, under Hamilton’s own terms, not a free man, and if not a free man one hardly capable of taking on the tasks of adjudicating well conflicts between those who exercise their will freely. A conflict of interest seems inevitable.
Interest is an … interesting … concept when applied to politics. The framers largely borrowed the concept from Smith’s analysis of economic exchange, where the concept seems more at home. It applies to politics more uncomfortably, and is in any case something different than ideas or principles. Operating from those befits a free man in a way far different than what interest does for those imply a level of thoughtful reflection that interest doesn’t, and thoughtful reflection seems immediately connected to what it means to be free. There is something dealing about understanding human beings as motivated solely by interest, and something even meaner in the idea that interest is mainly pecuniary, and yet that seems to be precisely the argument that Hamilton makes in 79.
By this point Article III’s blithe optimism about the role of judges in our constitutional system has been exposed. On both sides of the aisle people express constant frustration with the judiciary, victim as it is to the unrealistic hopes and expectations placed on it. Hamilton may have thought that judges would work quietly and studiously in the shadows, but the bright light of political disagreement and partisan bickering would soon expose them.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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