Document Type

Article

Publication Title

University of San Francisco Law Review

Abstract

Eisgruber and Dworkin have substituted the life tenure and unchanging salary of Article III judges for the real property of the landed gentry, but, mutatis mutandi, the logic of their argument is the same as the old Tory case for the House of Lords. Article III courts are "forums of principle," because the Constitution guarantees that they enjoy "social prestige and a comfortable salary" regardless of their decisions. Thus, judges, like the landed gentry, do not stand to gain or lose any material benefit from their exercise of power: They can deliberate freely about the meaning of moral principle "on the basis of the right kind of reasons." Voters, by contrast, can reap economic benefits from their political power; they can be expected, therefore, to ignore arguments rooted in principle in favor of self-serving arguments that favor their short-term material self-interest. In their more clearsighted moments, voters can see their own shortcomings as deliberative political actors, so they approve constitutions turning over responsibility for serious moral deliberation to life-tenured judges, leaving the political hustings for grubby pork barrel spending and eat and swill campaigning. The judges represent the long-term interests of the voters because they act from principle rather than from interest, which is what the voters themselves want (at least during those rare constitutional moments when they can muster up enough virtue to think about moral principles). The resemblance of this argument to the Tory argument for privileging the gentry is fairly straightforward: It is not for nothing that English judges are still known as "barons" and "law lords" and wear ermine, for these sumptuary indicia are fit trappings of independence that Eisgruber and Dworkin favor-more so, perhaps, than the priestly cassocks favored by their American brethren.

First Page

37

Volume

37

Publication Date

2002

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