Thursday, July 3, 2014
How would you construct a political regime to avoid the problem of judges issuing rulings to promote their personal political agendas, while at the same time insulating them somewhat from pressure by the other branches of government? James Madison thought he had the answer, as he explains in Federalist 81:
“It may in the last place be observed, that the supposed danger of Judiciary encroachments on the Legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the Legislature, may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the Judicial power; from the objects to which it relates; from the manner in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the Legislative body, and of determining upon them in the other, would give to that body upon the members of the Judicial department. This is alone a complete security. There never can be danger that the Judges, by a series of deliberate usurpations on the authority of the Legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a Court for the Trial of Impeachments.” .
Was Madison correct in thinking that the danger of judicial enroachments was a phantom? If not, why not?
How many judges nowadays would dare impose their personal views of justice in place of what the Constitution and statutes actually say? Do we avoid this by selecting judges who say they will follow the law no matter how much they disagree with it or how unfair they think it is?