Thursday, August 5, 2010


I came across something today I had never noticed before. In the closing of Federalist 81 (about abuse of judicial power), Hamilton says

And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

I had two thoughts upon reading this. The first was that modern justices clearly do not live in fear that Congress should punish them for usurpation by degradation from their station, since no justice has ever been impeached. The second is that I don't recall anything in the Constitution assigning such a power to Congress. I checked and I was correct. There are three sections on impeachment in the Constitution (excepting the sections excluding powers during impeachment proceedings from the courts and the executive):

Article I, Section 2:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

Plus one section on the terms of a Justice staying in office, Article III, Section 1

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Now one might reasonably argue that the arrogation of power not mentioned in the Constitution violates "good Behavior", but I think this clearly falls short of terms that would lead the Justices to fear Congressional rebuke for their actions. I find it rather difficult, then, to square the text of the document with Hamilton's (now I think clearly shown to be false) assurance that the judiciary would never exceed their bounds because of fear of impeachment.

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