Federalist No.79

The Judiciary Continued

Wednesday, May 28, 1788

Alexander Hamilton


79.1

This short paper concludes the discussion concerning the independence of the judiciary.

79.2

Hamilton first addresses the matter of salaries for judges. Just as the President must be freed from the concern of remuneration, judges can only hope to be independent if they do not fear that their salary will be diminished: a power over a man’s subsistence amounts to a power over his will. The solution is to allocate a salary for judges which can never be diminished below its original value. The Constitution takes into account that the economy will fluctuate over time, so the salary of judges can be reviewed by the legislature in order to bring it into line with current circumstances in the economy. One thought is that the legislature might decide to simply leave judges’ salaries as they are, but the stipulation that judges’ salaries cannot be allowed to be lessened from the value at which they come into office would prevent this. The legislature would be legally obliged to increase judges’ salaries to at least match the growth in inflation. The stipulation differs from that of the President, since the President’s salary must remain static for his four-year term. Hamilton says this is justified because circumstances are unlikely to change a great deal in four years, whereas a judge will be relying on their salary for life.

79.3

In the previous paper Hamilton explains the need for judges to have life tenure during good behaviour. The wording implies that judges can be removed from their position for malconduct. In this paper Hamilton explicitly addresses the means by which judges can be removed, which is the same as the President and other public officials: impeachment.

79.4

This raises another issue regarding judges’ life tenure: can a judge be removed from office due to their age? Hamilton cites the New York State Constitution which requires judges to retire at 60 years of age. And he thinks it reasonable that a judge would be disqualified for insanity, although it is not within the remit of this paper to decide how that might be determined. Other than that, Hamilton argues against federal judges’ being forced to retire at a certain age. He even implies that encroaching senility would not disqualify a judge:

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 ability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice.
79.5

Hamilton is approaching the problem out of a concern for judicial independence, and his above comment implies that allowing judges’ to be removed because their ability is questionable would open the way to attacks on other judges through insinuations for political purposes. So, unless a judge engages in misconduct or is insane, they are untouchable.

79.6

This position is further defended by Hamilton based on the realities of his time:

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 of 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.
79.7

In other words, life expectancy was lower in Hamilton’s time, so the problems associated with age was never going to be so pervasive that addressing them would reap greater benefits than protecting judicial independence. Combine this fact with his previous remark, we see that senility was little understood. There were no medical means by which to clearly determine when a judges’ mental faculties were deteriorating. Therefore, allowing senility as a justifiable reason to remove judges would have been a dangerous weakening of judicial independence. Of course, if Hamilton could argue it was not such a problem in his period, it is a growing problem now, with longer life expectancies. Judges still have life tenure, but I read that some judges are encouraged to either retire or take on fewer responsibilities, these days, when their mental faculties have diminished.

79.8

Hamilton makes one last point about the issue of age: that to remove judges from their positions in old age is potentially an act of inhumanity, In a republic, where fortunes are not affluent, and pensions not expedient. It is difficult to justify leaving someone destitute in old age who has given service to their country.

12 December 2019