be plunged in the most heated of
controversies, and in those controversies they cannot fail to be
influenced by the same passions and prejudices which sway other men. In
a word they must decide like legislators, though they will be exempt
from the responsibility to the public which controls other legislators.
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. He really had faith in the
English principle of an absolute parliament, restrained, if needful, by
a conservative chamber, like the House of Lords, but not in the total
suspension of sovereignty subject to judicial illumination. Consequently
he fell back on platitudes about judicial high-mindedness, and how
judges could be trusted not to allow political influences to weigh with
them when deciding political questions. Pushed to its logical end,
concluded he, the Jeffersonian argument would prove that there should be
no judges distinct from legislatures.[8]

Now, at length, exclaimed the Jeffersonian in triumph, you admit our
thesis. You propose to clothe judges with the highest legislative
functions, since you give them an absolute negative on legislation, and
yet you decline to impose on them the responsibility to a constituency,
which constrains other legislators. Clearly you thus make them
autocratic, and in the worst sense, for you permit small bodies of
irresponsible men under pretence of dispensing j