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Publication Date

3-1995

Document Type

Article

Abstract

For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers... the complete independence of the courts of justice is peculiarly essential in a limited constitution."
The Federalist No. 78, at 402 (Alexander Hamilton)

Alexander Hamilton's impassioned advocacy of an independent judiciary rings as true now as it did when Hamilton was attempting to convince the people of the State of New York to ratify the new Constitution. For over 200 years, the independent federal judiciary has been a powerful tool in guarding the Constitution and the rights of individuals. Indeed, the principle of an independent judiciary is so strongly ingrained in our constitutional structure that most Americans scarcely give it a second thought.

Although the general principle of judicial independence enjoys broad support, its definition is elusive. For members of the judiciary, the concept of judicial independence has both an institutional meaning and an individual meaning. In its institutional form, it is a corollary to the principle of separation of powers. That is, the judiciary is a vital branch of government with constitutionally delegated powers, and we must be free to act and interact with the other two branches. Each branch must bear its appropriate share of constitutional responsibilities and be accorded full respect in regard to those duties. ...

As I attempt to point out in this article, however, protection of judicial independence includes subtle but important protections in the relationships between the judiciary and the other two branches of government. Alexander Hamilton's discussions about the importance of an independent judiciary in THE FEDERALIST Nos. 78-83 contain suggestions of many attributes beyond life tenure that should be protected in order to maintain an appropriate level of independence for the exercise of judicial power. My hope is that all of us will look beyond the blatant personal interests of judges and see the attributes of independence that are indispensable to protecting the republic and the rights of those of us who call it home.

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