Saturday, September 17, 2016

The federal judiciary serves for life, and can strike down laws

"The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

- Article 3, Section 1 of the Constitution

The part here about "good behaviour" is effectively a lifetime appointment, since it means that the judges can hold their offices for life unless convicted of a crime (which is fairly rare for American judges, possibly because of their being subject to removal in this way). Just as the executive branch is subject to impeachment, so is the judicial branch; and judges can be removed by the exercise of this power.

Alexander Hamilton

De facto lifetime appointment

The de facto lifetime appointment here is among the most criticized parts of the Constitution, but was defended by the Founding Fathers as making them independent of having too much influence from the other branches (which could erode the separation of powers), or the popular prejudices of the people, who might otherwise have the power to retaliate against those who enforce laws against them - even when those laws are just and have actually been broken by the people who were judged against. In the words of Alexander Hamilton in the Federalist Papers, "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments" (Source: Federalist No. 78) This is why Hamilton correctly quoted Montesquieu as saying that "Of the three powers above mentioned, the judiciary is next to nothing." (Quoted in footnote to Federalist No. 78) Hence, the radical mechanism of a de facto lifetime appointment, to protect against the improper influence of the other branches.

Supreme Court of the United States

How federal courts are created, and how state judiciaries are interconnected

The Constitution says that the Congress shall have the power to "constitute tribunals inferior to the supreme court" (Source: Article 1, Section 8, Paragraph 9) - which is one of the few checks of any kind on the federal judiciary. It is also subject to a veto by the president himself, which allows both of the other branches to be involved in the process of deciding whether or not to create new federal courts. Although this is a post about the federal judiciary, a brief word about judiciaries at the state level might be appropriate here before moving on. The Constitution says that "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." (Source: Article 4, Section 1) Thus, the states are all interconnected in the proceedings of their courts, and anything that happens in one state can have repercussions in the others at times.

U. S. Ninth Circuit Court of Appeals (an influential appeals court) - Pasadena, California

Supreme Court of California

Checks on the power of the police and the president

The very existence of the judicial branch is something of a check on the executive branch, I should note here, because it means that the executive branch can't punish people for crimes (real or otherwise) without going through the court system first. Even though the president must "take care that the laws be faithfully executed," their power to enforce the laws is somewhat limited by the court system here. This is good, when you consider the frightening nature of some of the punishments that the laws authorize for crimes. (Fines, imprisonment, and even execution; depending on the seriousness of the crime, as perceived by the Congress.) A president with unlimited power to enforce these laws would thus have arbitrary power to punish people anytime he (or she) said that these laws were violated (including at times when they were not). Thus, the president and the police force are required to prove these charges through a fair trial in a court system, which is a major check on the executive branch and its power. Since many of these specific judicial restraints on the executive branch came through the later amendments in the Bill of Rights, I discuss these checks elsewhere in another post dedicated exclusively to that subject. Suffice it to say for our purposes here, though, that the original Constitution contained some important judicial checks on the executive branch; but that no discussion of this subject would be complete without a close examination of the Bill of Rights, and its specific regulations of the criminal justice system.

United States penitentiary on Alcatraz Island

Power to strike down laws deemed "unconstitutional"

But the most important power possessed by the judiciary may be its power to strike down laws that it deems "unconstitutional," or violating the spirit of the "supreme law of the land" that is the Constitution itself. This power is not explicitly granted to the courts by any passages in the Constitution itself; although it seems very clear that it is strongly implied in the Constitution, by certain passages limiting the power of the other branches. As an example, I will quote one of the clearest of them now, which limits the power of the Congress: "No bill of attainder or ex post facto law shall be passed." (Source: Article 1, Section 9, Paragraph 3) Before proceeding further, I should clarify that an "ex post facto" law is one that declares something you did on a prior occasion to be "illegal," even though it was perfectly legal at the time - thus making it illegal only "after the fact" (or in the Latin phrase, "ex post facto"). Another type of law that would fall into this category would be one that increased the punishment for a crime after the fact, to one that was not authorized when the act was given. Also, if a law increased the seriousness of the offense after the fact - for example, changing it from a misdemeanor to a felony - that would also fall under this category. And if a law were to change the rules of evidence after the fact to ensure easier convictions, that would also be "ex post facto." A "bill of attainder," by contrast, is a law passed by a legislature that declares a particular person (or persons) guilty of a crime and imposes a punishment, often without a trial - something that would usurp the proper power of the judicial branch, if it were allowed to be implemented (a truly frightening power, to the Founding Fathers and us).

Alexander Hamilton

Why we sometimes need this power

Thus, Alexander Hamilton argued, what are the courts to do when faced with a law of this kind that is clearly unconstitutional? Are they to judge someone guilty of having violated this law anytime the executive branch prosecutes a case on such a basis, or are they to steadfastly and resolutely refuse to do so, on the grounds that these laws are clearly prohibited by the Constitution - or in other words, "unconstitutional"? The latter is clearly the case, as Alexander Hamilton once argued in the Federalist Papers: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." (Source: Federalist No. 78)

Interior of the United States Supreme Court

Potential for abuse

But can't this power be abused, it might be argued, by declaring a law to be "unconstitutional" - when, in fact, it is not so at all? The answer is clearly "yes," but the only surefire way to prevent a power from being abused is to never grant anyone this power at all - something which clearly cannot be done, when there are certain explicit limits beyond which the legislative power cannot go (such as those mentioned in the Constitution); which cannot be enforced by any mechanism other than this power. There is only one major "check" upon the judiciary, I am sad to say, which is to make sure that the power of appointing them to begin with is exercised wisely and well. Thus, a few words about that power of appointing them might well be in order here:

John Jay, the first chief justice of the Supreme Court (appointed to that position by George Washington)

The power of appointing judges (and who has it)

The Constitution says that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Source: Article 2, Section 2, Paragraph 2) This is why the controversies over the appointment of federal judges - and particularly, judges of the Supreme Court - are so heated and intense: the stakes are high, and the appointment is usually for life.

The need to be careful about who we appoint

Thus, we must be careful about who we appoint to these judicial positions.

Footnote to this blog post:

Montesquieu once said that "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary power, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." (Source: "The Spirit of Laws," Book XI, Chapter 6, as quoted by James Madison in Federalist No. 47)

If you liked this post, you might also like:

The tyrannical police state: The worst nightmare of the Founding Fathers

Actually, the death penalty is constitutional (as the Fifth Amendment makes clear)

The legislative branch: Two houses of Congress limited by a presidential veto

The executive branch: A varied assortment of agencies led by one president

The Constitution: The "supreme law of the land" (which is difficult to amend)

Part of a series about
The Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
The Second Amendment: Constitutional debates on the people's right to bear arms
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

← Previous page: Impeachment - Next page: Miscellaneous (includes Amendment Process) →

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