This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
DBx: Hamilton in this Federalist essay famously argues that the independence of confirmed judges from the legislative and executive branches of government is necessary to ensure that the Constitution is not violated – and, thereby, that the rights of “the minor party in the community” are not trampled upon – by the “ill humors” of current majorities. Hamilton, in short, sought to put majoritarian democracy “in chains.” Such chaining of majoritarian rule so that it neither oppresses minorities nor sacrifices the People’s longer-run interests to today’s temporary passions is the key and most challenging part of the constitutional project. Such a project – in the U.S. and in every other nation with any pretensions at all to being something more than a tyrannical hellhole – is central.
Only someone totally ignorant of political and legal history would conclude from remarks such as those of Hamilton here – or of Jim Buchanan and other public-choice scholars two centuries later – that these remarks are evidence of a wish to silence and enslave ordinary people so that a handful of privileged oligarchs can rule uncontested. Only such an out-of-touch person would suspect that the author of such words is either a crony of those oligarchs or a useful tool for their nefarious designs. And only someone with the most naive and juvenile understanding of democracy and political theory believes that constraints upon majority rule are inconsistent with democracy and political freedom. Nancy MacLean – judging from her fictional tale about Jim Buchanan – appears to be such an uninformed person.