Why does hamilton consider the independence of the judiciary

The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.

Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. And every man 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.

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, can certainly not be expected from judges who hold their offices by a temporary commission. 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 them was committed either to the executive or legislature there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if 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.

There is yet a further and a weighty reason for the permanency of the judicial offices which is deducible from the nature of the qualifications they require. It has been frequently 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 point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.

Hence it is that there can be but few men 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; and that a temporary duration in office which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench 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; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

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, in point of duration; and that 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. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

The Founding. Chapter 6: Revolutionary Considerations of Citizen To Lord Howe. Speech in Congress on Confederation. Letter to John Jay.

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Atticus II. Calling Massachusetts State Convention. John DeWitt I. Monitor Essay. Cato III. The Georgia State Convention. Philo-Publius I. Gouverneur Morris to George Washington, October Virginia Calls for State Convention. A Landholder I. Pennsylvania elects 69 delegates. Centinel III. Letter to Bushrod Washington.

Delaware calls for state convention. A Landholder II. Connecticut Elects delegates for State Convent Brutus III. Essay by A Georgian. Philo-Publius II. The Landholder III. Cato V. Agrippa I. Speech to the Pennsylvania Convention, November A Landholder IV. A Democratic Federalist, November 26, Agrippa II. A Pennsylvania Farmer. All of these reforms would present significant problems of their own—including the inevitable unintended consequences.

Adam J. White is a contributing editor to City Journal and a research fellow at the Hoover Institution. Send a question or comment using the form below. This message may be routed through support staff.

More detailed message would go here to provide context for the user and how to proceed. City Journal search. City Journal is a publication of Manhattan Institute. Search search. Experts Hea ther Mac Donald. Topics Hea lth Care. Close Nav Search Close Search search. Are you interested in supporting the magazine? More from Adam J. No legislative act, therefore, contrary to the Constitution, can be valid. 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.

Although judicial review is not explicitly mentioned in the Constitution, the U. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the case Marbury v. Madison, 5 U. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated "judicial activism" by striking down legislation, Hamilton was correct in foreseeing that the U.

Supreme Court and lower courts would protect the rights defined by the people in their Constitution.