Working Paper No. 11-29:
Judicial Independence, Judicial Virtue, and the Political Economy of the Constitution

Author(s):

Nelson Lund

Date Posted: June 2011

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Abstract:

This short symposium contribution explains why the framers structured the judiciary in a way that departed dramatically from their overall economic theory of government — a theory summed up most succinctly in Madison’s dictum that “ambition must be made to counteract ambition.” In his defense of an independent judiciary, Hamilton supplemented his well-known emphasis on the structural weakness of the courts with a less famous appeal to the peculiar personal virtues that his audience could reasonably expect the new federal judges to possess.

Those virtues are still celebrated, especially during confirmation hearings, but they are practiced much less than they are praised. This is at least partly the result of misaligned judicial incentives, which Congress has the power to alter. The paper concludes by summarizing four proposals for statutory reform which, if adopted, would encourage our Justices to behave more like the kind of judges that the nation was promised at the founding.