The idea that federal judges should serve during “good behaviour” was uncontroversial. That proposal first appeared in the ninth resolution of the Virginia Plan, and it never provoked any criticism thereafter. Alexander Hamilton’s Federalist No. 78 helps us to better understand the framers’ commitment to tenure during good behavior. There we learn that tenure during good behavior was deeply interwoven with judicial review.
Hamilton opened his discussion by saying three topics needed review. The first, the mode of appointment — presidential nomination, senatorial confirmation — he covered in a single-sentence paragraph. The third topic, the partition of judicial power among multiple courts, required a careful, detailed description. The second topic, “the tenure by which they are to hold the places,” demanded something more: a substantive account of the judicial function under a written constitution.
Hamilton began this account with his famous portrayal of the judiciary as the “least dangerous” department. It possessed none of the resources the political branches enjoyed. “It may truly be said to have neither force nor will, but merely judgment.” For this situation to work, however, the judiciary must “remain truly distinct” from the other two departments. Here Hamilton invoked the wisdom of “the celebrated Montesquieu.” Tenure during good behavior would give judges the independence they needed to act conscientiously.
But all this was a prologue to Hamilton’s real argument. The most important question was to explain “the rights of the courts to pronounce legislative acts void.” Judges lacked the direct political authority that legislators enjoyed as the people’s elected representatives. How could they therefore acquire a superior voice? Hamilton resolved this “perplexity” with an elegant formula. The Constitution and the legislature both derive their power from the people. By its very nature the Constitution is the superior source of legal authority. Judges were therefore empowered to “ascertain its meaning” as well as the meaning of ordinary legislation. When there was a conflict between them, therefore, the Constitution must prevail, and judges, independently applying their learning, must enforce it.
Tenure during good behavior was a necessary condition to enable the judges to fulfill this responsibility. But history has since revealed that giving Supreme Court justices tenure during good behavior no longer provides the impartiality and independence that the framers intended to bestow. We now know that this procedure can produce two radically different ends. Its intended purpose was to recruit a skilled judiciary whose members would apply their individual judgment to decide the cases and controversies that came before them, on their merits. Today its manifest purpose seems quite different. If one can establish reliable criteria to vet the political preferences of potential judicial nominees, one can convert judicial agenda-shaping and decision-making into “a continuation of politics by other means,” to borrow a phrase from the Prussian military strategist Carl von Clausewitz. Perhaps our constitutional jurisprudence now owes more to Clausewitz than it does to Hamilton, Madison, or John Marshall.