Judicial Independence, Judicial Virtue, and the Political Economy of the Constitution
Lund, Nelson, Harvard Journal of Law & Public Policy
Economic theory applies to many things besides the commercial marketplace. Whether, or to what extent, the Framers constitutionalized an economic theory of private property and free enterprise, they certainly did employ an economic theory of government. James Madison famously summarized that theory in The Federalist:
[W]hat is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. (1)
And how can the government be obliged to control itself? Again, Madison offered a succinct theoretical answer: "Ambition must be made to counteract ambition." (2)
The practical scheme based on this theory is familiar to us all. For the most part, the key is to make each official and each institution dependent on other officials and other institutions. Enacting a law, for example, requires the agreement of majorities in both the House and the Senate and usually of the President as well. The President takes many actions by himself or through his subordinates, but almost all of them require statutory appropriations or authorization by one or both houses of Congress. (3) All of these officials, moreover, depend on popular elections to stay in office.
But there is one institution in which the Framers took almost the opposite approach: the judiciary. In The Federalist, Alexander Hamilton argued that this department of government should be largely independent from the President and the Congress and even from the people themselves. (4)
Some Anti-Federalists objected that the power of judicial review, together with life tenure, could lead to profound judicial usurpations of power. (5) Hamilton described one particularly serious objection as follows: "The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body." (6)
As subsequent events have shown, this Anti-Federalist objection was not exactly a paranoid fantasy. But Hamilton had a logical response: Somebody must have the final word on what the Constitution means, and the judiciary is the least dangerous place to put that power. (7)
One reason Hamilton regarded the judiciary as the least dangerous branch was structural: The judges would control neither the sword nor the purse, (8) and if they did get out of control, there would always be the remedy of impeachment. (9) Unfortunately, as history has shown, that structure leaves a great deal of room for judges to invent whatever Constitution and laws they like, so long as they do not push things so far as to get themselves impeached. As it has turned out, judges are never removed from office because of usurpatious decisions. (10) And, of course, the remedy of impeachment was never likely to be used against judges who ignore the law by permitting Congress itself to exercise unconstitutional powers.
Hamilton also suggested another, less well-known answer to concerns about the dangers of judicial independence: He assumed that judges would have more civic virtue than other politicians. (11) As a substitute for the principle of relying on ambition to counteract ambition, he emphasized that special qualifications would be required of those chosen to fill judicial offices. Most obviously, judges would be scholarly individuals who had engaged in "long and laborious study" of legal precedents. …