In 1785, Madison had been giving a lot of thought to the political features that were needed to formulate a good constitution. He wrote to Caleb Wallace: “The Judiciary Department merits every care,” and explicitly commended the court system in Great Britain, because “it maintains private Right against all the corruptions of the two other departments.” Madison gave three reasons to recommend the British courts as a model: “1. that the Judges should hold their places during good behavior. 2. that their Salaries should be either fixed like the wages of the Representatives or not be alterable so as to affect the Individuals in Office. 3 that their Salaries be liberal.” All three of these features were meant to ensure the independence of judges from the other branches of government.
The feature of British courts that Madison particularly admired was their independence from the other two branches of the government. In order to ensure that a judge’s interpretation of the laws is impartial, it is imperative that the two political branches of the government—the legislative and executive departments—have no means of unduly influencing a judge’s decision. Of the three requirements that Madison listed, the first two—that judges should hold their offices during good behavior and should receive a fixed salary—were both meant to safeguard that independence. The third requirement—that the judges’ salary be liberal—was only meant to ensure that the job of being a judge did not pay less than that of being a lawyer. Nonetheless, if Madison had to choose between these two benefits—either procuring a judge’s independence or ensuring that a judge’s salary be superior to that of lawyers—it became clear throughout the Convention debates that he believed that safeguarding the judge’s independence was the more important goal. His calculations on this issue, however, failed to win general support.
On these questions, the Virginia Plan stipulated only that judges were “to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution.”
Not everyone at the Convention would weigh the trade-offs between a fixed and a liberal salary in the same way that Madison did. No doubt all the Framers believed that securing the independence of the judiciary was as important as Madison thought it was, but the majority of delegates nonetheless came to the conclusion that the Constitution could allow for an increase of the judges’ salary without seriously compromising that independence.
When the provisions relating to the judges’ tenure and salary were first considered in the Committee of the Whole on June 5, the clauses in the Virginia Plan were accepted without debate or dissenting votes. The New Jersey and Hamilton Plans validated this choice by offering up similar language—identical, in fact, in the New Jersey Plan.
On July 18, disputes arose, however, when the delegates again considered the clause: that “no increase or diminution [of the judges’ salaries] shall be made so as to affect the persons actually in office at the time.” Gouverneur Morris wanted “to strike out ‘no increase.’ He thought the legislature ought to be at liberty to increase salaries, as circumstances might require; and that this would not create any improper dependence in the judges.” Franklin agreed. Inflation could wreak havoc on a salary that was unable to rise with it. Madison admitted that allowing for “increase” alone would create less of a dependence between the branches than would be the case if Congress were permitted both to raise and to lower the judges’ salaries, but he still thought that there was too much potential for impropriety even with that power alone.
Madison suggested that the delegates could fix the salary to some objective standard—such as the price of wheat, or something else “of permanent value”—so that salaries would rise automatically with inflation. He thought that they could arrange matters so that any increase in salaries did not affect the judges who were already serving. Morris thought otherwise. He rejected the notion that there could be found anything of “permanent value.” He rightly observed that, as societies grow richer, the value of basic commodities falls relative to the average income. “The amount of salaries,” he argued, “must always be regulated by the manners and the style of living in a country.” Most of the delegates were convinced, because they voted, 6-to-2, to strike out the prohibition against raising a judge’s salary. After making that change, the clause was passed unanimously.
Madison did not give up, however, and on August 27 he tried “to reinstate the words, ‘increased or,’ before the word ‘diminished,’” in the clause relating to the judges’ salary. Morris again opposed it, giving the same arguments he had used previously. George Mason offered a spirited defense of the motion. Even if fixing the salary to some commodity was imperfect, they could compensate for any imperfections by arranging salary hikes so that they did not affect judges who were already in office. General Pinckney countered that would only make matters worse, since it would mean that junior judges would get paid more than senior judges. In order to attract “men of the first talents,” they would need to offer generous salaries, “larger than the United States can afford in the first instance.” Madison’s attempt to reinstate the prohibition against increasing the judges’ salaries was a bust: only Virginia voted in its favor. Consequently, the Constitution places no bar to raising the judges’ salaries, but salaries may not be diminished. Most of the Framers seemed satisfied that this expedient would ensure sufficient independence in the judicial branch.