It looks like July is going to be the month to mark your calendar for the great pay dispute between the judges of New York’s court system and the legislators and governor who have failed to give them a raise. Chief Judge Judith Kaye filed the case in a court inferior to her back in April, and if the case in and of itself weren’t juicy enough, the lawyer for the judges, Bernard Nussbaum, indicated that he was preparing to question the legislative leaders, Speaker Sheldon Silver and the Majority Leader in the Senate, Joseph Bruno, over their outside income. Yesterday, lawyers for the governor and speaker of the Assembly filed a preliminary response, warning they will put the judges under oath themselves over their income and over how demoralized they are.

The most illuminating document bearing on the case, however, may well be the letter to the editor Mr. Nussbaum wrote us in response to our editorial pointing out that making judges salaries derive from a source other than the authorization of an elected legislature was one of the grievances against George III listed by the founders of America in the Declaration of Independence itself. The editorial also quoted a 1773 resolution of the Massachusetts House of Representatives that “making the Judges of the Land independent of the Grants of the People … is unconstitutional and destructive of that Security which every good Member of civil society has a just right to be assured of.”

RELATED: Judges May Have To Talk in Pay Case.

Mr. Nussbaum’s letter, which was carried on this page May 27, argued in response that delegates to the Constitutional Convention “at first considered barring Congress from changing judges’ salaries in any way — either by increasing or decreasing them.” He also writes that James Madison argued that judicial pay should be indexed, “taking for a standard wheat or some other thing of permanent value.” We can call this the Nussbaum Doctrine — that we are bound not only by ideas that the Founders chose put in the constitution but also by ideas they considered and decided against putting in the Constitution.

Let us just say, we started covering the courts when they still had spittoons, and we’ve not seen a constitutional doctrine quite as audacious. If Mr. Nussbaum can pull this off, he will cement his reputation as one of the greatest lawyers of his generation. But the plain language school of constitutional law to which these columns subscribe suggests to us that the mere fact that the Constitutional Convention considered something before rejecting it, or that an individual founder advocated it, is hardly dispositive. John Adams believed the nation’s executive ought to be called “His Majesty the President” to cultivate the appropriate degree of reverence for the office. Benjamin Franklin thought the president ought to serve without pay.

Just because Madison wanted to index judicial salaries to inflation doesn’t mean that was a good idea. He failed, after all, to get his scheme through the Constitutional Convention. Or, as the lawyers for Governor Paterson and Assembly Speaker Silver put it in court papers filed yesterday, paraphrasing the United States Supreme Court’s decision in Will v. United States, another case involving pay, “The Court noted that, as the Framers rejected an indexing scheme, the Judiciary could not bind Congress to adopt one.”

Another argument Mr. Nussbaum advanced in his letter reckons that even though New York state judges have above average salaries, they deserve a raise because the cost of living in New York is higher. So far, at least, the taxpayers of this state who would be taxed to pay the judges aren’t buying it. A majority of taxpayers have to make do on earnings that are less than those of the judges, and the taxpayers are coping with the same high cost of living. They also, many of them, have less generous health care and pension benefits than the astoundingly generous packages the judges enjoy.

A Siena Poll of 622 New York registered voters found they opposed a pay raise for judges, 55% to 39%. More people supported a pay raise for the most dysfunctional state legislature in the nation than a raise for the judges. Those polled were quite familiar with the cost of living in the state, because they live here, too, and they can’t understand why they should be taxed to provide raises for judges who are already paid above average salaries for a decidedly mixed performance.

We don’t want to be misunderstood here. We’re enormous admirers of Mr. Nussbaum and of Judge Kaye and even of Madison, though he was spotty. We don’t underestimate Mr. Nussbaum’s skills as a lawyer. His challenge of convincing a judge to order himself a pay raise is going to be easier than convincing the voters of the state to raise the judges’ pay. After all, if the judges get a raise, the money will come out of the pockets of taxpayers. Which is why we’ve stressed that we have no problem with the legislature raising the salaries of those judges who deserve it. But a blanket, across-the-board raise for all the state’s judges will, given the erratic nature of so many of the judges, strike many taxpayers as inappropriate. If this all comes to a head in court in July, it will be a case to watch.