Good-behavior tenure

Good-behavior tenure is the proposed Constitution’s rule that federal judges remain in office during good behavior, and its decisive significance lies in the independence it is meant to secure. In the account of Publius, a judiciary too weak to command force or money must nevertheless be able to judge whether government has stayed within its lawful bounds. Continuity in office is therefore not an ornament of judicial status but a condition for guarding both the Constitution and the rights of individuals against pressure from the other branches and the changing temper of politics.

Definition and Constitutional Purpose

Under the plan of the convention, judges appointed by the United States are to hold their offices during good behavior. Publius presents this tenure as conforming to the most approved state constitutions, including that of New York. He regards the standard as a major modern improvement in government: in a monarchy, it can restrain a prince’s despotism; in a republic, it can resist the encroachments and oppression of representative government. Its central purpose is to secure a steady, upright, and impartial administration of the laws.

The rule belongs to a broader argument about the character of judicial power. The Executive distributes honors and holds the community’s sword; the legislature commands the purse and prescribes rules governing citizens’ rights and duties. Courts possess neither instrument and cannot take active measures on their own. Their judgments ultimately depend on executive assistance for their practical effect. This weakness makes judicial independence more, not less, important: a court that cannot enforce its decisions by its own strength must be protected from being overborne, awed, or influenced by the branches that can.

Constitutional Review and the Need for Independence

The argument is especially pressing under a limited Constitution, understood as one that places specified exceptions on legislative authority, such as prohibitions on bills of attainder and ex post facto laws. Those limits would be ineffective if no institution could apply them. Publius assigns courts the duty of declaring void acts contrary to the Constitution’s manifest tenor; without that judicial function, reserved rights and privileges would amount to nothing.

He answers the objection that a court declaring legislation void thereby claims superiority over the legislature by distinguishing the authority of the people from the authority delegated to their representatives. A legislative act contrary to the Constitution exceeds the commission under which the legislature acts. The courts, when faced with conflicting commands, must adhere to the prior and superior constitutional rule and disregard the inconsistent statute. This is not presented as a license for judges to replace law with preference: their task is to declare the law’s meaning, and the argument applies equally whenever a court interprets a statute.

Permanent tenure supports the independence required for this responsibility. If judges are to serve as bulwarks against legislative encroachment, they must be able to perform that arduous duty without fearing that a decision will cost them their offices. The same independence is needed when political leaders or public opinion press for a dangerous innovation. The people retain the right to alter or abolish their established Constitution through a solemn and authoritative act; a momentary majority’s inclination, however, does not itself authorize representatives to violate the existing constitutional rules. Until the people act through that formal process, those rules bind the community collectively as well as individually.

Protection Against Political Pressure

Publius argues that judicial independence also protects individuals and classes from unjust or partial laws produced in moments of public ill temper. Courts can limit the immediate operation of such laws and, by making clear that legal obstacles may frustrate an unjust purpose, discourage legislators from pursuing it. The judiciary’s integrity and moderation have, he says, already been felt in more than one state. People who benefit from an injustice today may become its victims tomorrow, so the restraint courts provide serves a broader public interest than the defense of any single group.

Temporary appointments, even if carefully arranged, would weaken that restraint. If the Executive or legislature controlled judicial appointments, judges could become improperly accommodating to the appointing branch. If both branches shared the appointment power, judges might avoid displeasing either. If appointment depended on the people or on special delegates chosen by them, judges would face pressure to court popularity. In each arrangement, the incentive to preserve office could compete with fidelity to the Constitution and laws. Good-behavior tenure is offered as protection against these recurring forms of dependence, not as a claim that judges are free from legal duty.

Expertise, Continuity, and the Case for Tenure

The case for lasting judicial service also rests on the qualifications the office requires. A free government’s extensive body of law and precedent is the cost of avoiding arbitrary discretion in the courts. Judges must master detailed rules that define their duties in particular cases, and those rules accumulate through the many disputes arising from human folly and wrongdoing. Legal competence therefore requires long and laborious study; integrity must accompany that knowledge, narrowing still further the number of people suited to the bench.

A temporary term would discourage qualified people from leaving a more lucrative legal practice for judicial service. The likely result, Publius warns, would be to entrust the administration of justice to people less able or less well prepared to conduct it with usefulness and dignity. His conclusion weighs this practical concern alongside the dangers of political dependence: the constitutional convention acted wisely in adopting good behavior as the tenure of judicial offices, and its plan would have been seriously defective without this feature. He invokes the experience of Great Britain as an emphatic historical illustration of the institution’s value.