Such conditions you can only meet by making the judicial tenure of
office ephemeral, as all legislative tenure is ephemeral.
It is vain to pretend, continued he, in support of fixity of tenure,
that the greater the pressure on the judge is likely to be, the more
need there is to make him secure. This may be true of judges clothed
with ordinary attributes, like English judges, for, should these try to
nullify the popular will by construing away statutes, Parliament can
instantly correct them, or if Parliament fail in its duty, the
constituencies, at the next election, can intervene. But no one will be
able to correct the American judge who may decline to recognize the law
which would constrain him. Nothing can shake him save impeachment for
what is tantamount to crime, or being overruled by a constitutional
amendment which you have purposely made too hard to obtain to be a
remedy. He is to be judge in his own case without an appeal.
Nowhere in all his long and masterly defence of the Constitution did
Hamilton show so much embarrassment as here, and because, probably, he
did not himself believe in his own brief.
Pages:
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62