The dead-of-the-night deal that was struck in respect of the pay of New York State’s judges is being hailed by the governor, the bar association, and, it seems, the judges. And why not? It establishes a system that takes the governor off the hook — and, for that matter, the legislature. Under the new system, the hard-put-upon taxpayers of New York State can be forced to give a raise to the judges of the state court system without the taxpayers’ elected representatives having to give it so much as a hearing, let alone actually to vote on it.

Instead the deed will be done by a commission that includes only two persons appointed by the legislature and an equal number of persons who are appointed — wait for it — by the judges themselves. The judges will get to appoint two-sevenths of the commission that will decide their pay. This stunt was pulled the same week that unemployment benefits were ended for the rest of Americans because the taxman is already taking too much money from those few who are left working. There will come a day when this will be seen as a strategic error.

If it will be said that this newspaper is unsympathetic to judges, we will plead innocent. The fact is that judges are generally the most learned and most thoughtful of our public officials. And we recognize the special nature of judges’ pay. The pay of judges was one of reasons America seceded from the tyranny of Britain. The grievance was enumerated in the Declaration of Independence itself, which noted that the British king, George III, had made judges “dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”

So the Constitution of the United States — and, incidentally, of New York State — establishes that  a judge’s     pay may never be diminished during the judge’s tenure in office. To lower a judge’s pay is unconstitutional. The principle is American bedrock. But it is also American bedrock that money mayn’t be drawn from the treasury except through an appropriation by the legislature. And the record is clear in American law that a legislature can’t delegate its powers to someone else. Why, after all, bother with a legislature in the first place?

In the case of the pay of New York State judges, the legislature has sought to evade this principle by reserving for itself the power to block the decision of the commission it is setting up to deal with judges’ pay. That strikes us as a dodge. It would be like the legendary bank robber Willie “The Actor” Sutton — who put his hands in his pockets and poked a finger at the bank tellers — pleading innocent because he wasn’t carrying a real gun when he demanded the money. By our lights, if a legislator is going to give someone a raise, he ought every time to look the taxpayers in the eye. It’s their money he’s spending.

The right way to address the question of judges pay is repair the dollar. For it is true that the pay of our judges has been reduced during their tenure in office. But what has been putting our judges in such extremis is not that anyone reduced the number of dollars they’ve been paid. It’s that the value of the dollar has collapsed. If, for example, the chief judge of the state of New York was paid a decade ago with a dollar that was worth a 270^th of an ounce of gold and is today paid with a dollar that is worth barely a 1,400^th of an ounce of gold, his or her pay has been reduced. Unconstitutionally so, in our view.

The right way to rectify this is to pay our judges in constitutional money, meaning a set number of grains of silver or gold. That is what a dollar was understood as being by the same Founders who established in the constitutions of America and New York that a judge’s pay may never be reduced. This, incidentally, would give most of our judges much bigger raises than they are going to get from the cornball commission the legislature has just set up. And it would throw into sharp relief the predicament of the rest of America. Judges, after all, aren’t the only ones who have been robbed over the decades by the Great Thief of inflation.