The Judiciary

The Federalist No. 78

A federal judiciary is not in dispute; it remains to argue its form of construction and extent. The mode of appointing judges has been discussed. Life tenure is a barrier to encroachments by the legislature and secures steady, upright, and impartial administration of the laws, particularly valuable as the judiciary is the weakest branch. As the Constitution imposes limitations on the Congress, the judiciary must have the power to review congressional acts relative to the Constitution. Any act contrary to the Constitution must be void; otherwise the Congress becomes superior to the Constitution. The Constitution did not give the power of review to the Congress; hence it must reside in an independent body, the Supreme Court. When deciding between conflicting laws, the practice favors the most recently enacted; but when a conflict concerns two instruments, the superior instrument must prevail. Life tenure provides the highest assurance of judicial independence, a benefit to safeguard minority rights granted in the Constitution from temporary violations by a majority in the community or in Congress, and against the occasional unjust law which may not itself violate the Constitution. Life tenure also creates immunity to corruption and enables jurists to comprehend the complexity and volume of the civil code which they must master to be effective.

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The Federalist No. 79

As power over a man’s income is power over his will, the incomes of Court justices must be as independent as possible from the Congress, which sets salaries. The constitution’s provision, of a fixed lower bound but no upper bound during term of service works. As judges serve for life, they are entitled to raises as general economic circumstances affect real income. Impeachment provides the public’s recourse for judicial misbehavior in office. Any other form of accountability must in the application be more arbitrary and perhaps mischievous than a sensible assessment of justice or the public good. The New York system of dismissing judges at age 60 is both unwarranted and cruel, throwing public servants into the cold without provisions when they are least able to find alternatives

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The Federalist No. 80

Any federal court should address five general categories of disputes or cases: (1) arising from the laws of the United States; (2) arising from the Constitution itself; (3) between the United States and a state or citizen of a state; (4) between two or more states or any individual state and another nation, or any individual in one state and another state, or individuals in different states; (5) maritime and admiralty disputes. The Constitution clearly provides for all of these. Issues at equity will also arise in any of these circumstances which require a federal tribunal as much as issues at law.

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