• Video

The Founders and the Problem of an Independent Judiciary

In the British governmental system, the judiciary was an extension of the executive power. Even in the American colonies, judges were appointed and often controlled by the governor. The Framers wanted to design a judicial system that was independent of both of the legislative and executive branches of government. Moreover, under the new Constitution, there became a need for judges to impartially evaluate federal concerns which had not existed under the Articles of Confederation. https://youtube.com/watch?v=pdGzGjBLtAI


Article Three is also a significant departure in some ways from the British experience. Montesquieu thinks about courts as really being an independent branch of government as being a separate branch of government. It had its own functions and duties. The English themselves tend to think about courts as being more an extension of the crown, really part of the executive branch, from our perspective. And that was often true of the colonial courts that existed in the United States before the American Revolution as well. The judges were really an extension of the crown, extensions of the governors, and so the idea that you could really create a judicial branch that was purely independent, really separate from both the executive branch and from the legislature is something that people were talking about doing, but there were not a lot of examples of what it actually would look like in practice. The American states of course had judges already after the American Revolution, but the federal system under the Articles of Confederation did not have its own set of judges. They thought federal judges would be a good idea. They had some ideas about what they wanted those judges to be doing, including enforcing federal laws, enforcing federal treaties, working out what kinds of rights people had as they crossed state boundaries as opposed to most of the legal work which be done inside of states. ‘ But trying to think about how do you create that kind of judiciary that can do that work without being too dependent on either executive or legislative branch was not an easy task and they didn't have a lot of guideposts to go by in thinking that through. Some were thinking about what the tenure of judges ought to look like. So they know they want judges who are going to be independent minded, that they weren't going to be simply dependent upon what the president wants them to do for example, nor what the legislature wants them to do. And so they know they need some way of insulating those judges from that kind of influence. And life tenure seemed like a fairly natural way from their perspective to do that. But again, they're feeling their way toward what might work as a system that's going to make judges pay attention to law and not be looking over their shoulders too much to see how other politicians are going to respond to what they're doing.

Related Content