If I were to ask how can the people hold the president or members of Congress accountable for their personal, political, and professional actions I am sure someone would quickly be able to answer. The Constitution gives two methods for removing both the president and members of Congress from office. The first method is a political one; simply vote them out of office. If the people become unhappy with the president or their members of Congress, they can take it out on them when they run for reelection. (Note: Prior to being term limited to two terms by the 22^nd Amendment, a person could be elected president for an unlimited number of terms.)

            The second method for removing a sitting president or member of Congress is applicable when there has been criminal misconduct. In these cases a president can be impeached and a member of Congress can be expelled from Congress. Let me reiterate that this method is to be used when there is evidence of criminal misconduct; not for political reasons. Also, the power to impeach or expel is limited to removal from office. In order for the president or member of Congress to go to jail they must first be removed from office, then the proper authorities can decide to formally charge them with a crime in court.

            What about the federal judges and justices? Federal judges and members of the Supreme Court of the United States are not elected by the people. They are appointed by the president and confirmed by the U.S. Senate. Once they are confirmed, so long as they do not break the law, they serve for life, right? Wrong! According to the Constitution, members of the federal judiciary "shall hold their Offices during good Behaviour." (Article III, Section 1) Let's spend some time exploring what is meant by good behavior.

            Some scholars argue that this phrase is just another way of saying federal judges can be impeached for corrupt and criminal acts. If that is the case, why not just say that? If that is the case, why didn't the Founders just use the same language they used for the impeachment of the president? They could have copied the exact phrase from Article II Section 4 and replaced "President, Vice President and all civil Officers of the United States" with "The Judges, both of the supreme and inferior Courts" as it is worded in Article III Section 1. The Founding Fathers were extremely intelligent men who were very deliberate in how they worded the Constitution. Since the wording they used to describe the removal of a sitting judge is different from the other branches, it would be reasonable to think that the meaning must be different as well.

            One point must be made before moving on. The Founders did not intend for judges to be removed from the bench for strictly partisan, political reasons. They went out of their way to create an independent judiciary, something the British system sorely lacked. In England, judges served at the pleasure of the King. In several instances, the King exerted influence over the judiciary to wrongfully charge and convict colonists for opposing policies of the Crown and the Parliament. Any judge that did not obey the wishes of the King was replaced. The Founding Fathers did not intend for this to happen in the United States. That is why they described the term of service as during "good Behaviour" in the Constitution. Alexander Hamilton says as much in Federalist 78 (one of the essays describing the judiciary) when he ends it saying,

            "The experience of Great Britain affords an illustrious comment on the excellence of the institution."

            With all of that said what, then, IS meant by "good behavior?" The most logical answer to that question would be that good behavior is the justice or judge faithfully carrying out the duties he was appointed and confirmed to perform.  That would lead one to ask what those duties are? According to Federalist 78, the job of a judge is

            "the interpretation of the laws is the proper and peculiar province of the courts." 

            So we can conclude that a federal judge or Supreme Court justice is serving in good behavior if he limits himself to interpreting the laws of the United States. That is the job description of a judge: to interpret the law as it is written. I should note that it can be argued that contained within the interpretation of law can be inferred the ability or power to declare that a law runs contrary to the U.S. Constitution and is therefore unconstitutional. The Founders debated this point extensively. What is not included in this job description is the power to interpret the U.S. Constitution to find rights in it that are not specifically stated. This is what is commonly referred to as judicial activism and this conduct lies outside the boundaries of the good behavior requirement and essentially usurps the power to make the law from the United States Congress. This was never the Founder's intent.

            Allow me to expand on this point of finding rights in the Constitution that are not specifically there. The most famous of these "found" rights would be the right to privacy that eventually led to the Supreme Court's decision that abortion was a guaranteed right under the U.S. Constitution in Roe v. Wade (1973). The United States is not, as many people believe, a democracy. We are a republic. While there are some similarities between the two, there are some significant differences as well. One of those differences that is specific to the United States is our Constitution. Our Constitution is one of enumerated powers. In other words, the powers of the various branches of the federal government are specifically listed. The understanding is that any power not specifically listed in the Constitution is a power that is reserved to either the states or the people themselves. Basically, if the power or right is not specifically listed in the Constitution then it is not under the control of the federal government and cannot be "found" by a judge.

            Now that we understand what is meant by good behavior the question becomes, how do you keep a judge operating within the good behavior standard and how do you punish him when he willingly violates it? The simple answer is that you threaten judges with removal from the bench if they step outside the good behavior standard and then follow through on the threat if they do.

            The American public has a great capacity to feel compassionate for others. Just a quick look at the money and time Americans give when there has been a natural disaster affecting us at home or abroad should be enough to prove this point. But this national trait that serves us so well during times of disaster or misfortune can be characterized as a disservice when the future of our Republic is at stake. Most Americans will feel compassion for someone when they lose their job. There is no reason to believe that this would not hold true for an impeached judge or justice.

            The problem probably lies in our memory. By the time the judge is formally removed from the bench, many people will have forgotten how angry they were at the acts the judge committed. We must force ourselves to become involved and informed if we are to maintain the Republic as it was given to us by the Founders. We must become as passionate about ensuring its survival for our children as we are about cheering on our favorite American Idol contestant. We must once again make this a government of, by, and for the people. We should also take it personally when judges go beyond their proper role and usurp the powers that "We the People" have delegated to our elected representatives.

The case Marbury v. Madison (1803) was a landmark case.  It was in this case that the Court declared that it had the power of judicial review.  Judicial Review gives the Court the ability to declare what is and is not constitutional.  Under judicial review, the U.S. Supreme Court can declare acts of the Congress or Executive branch are unconstitutional and thus illegal.  That an unelected branch can be the superior of the elected branches seemed, to Jefferson, to miss the entire point of representative government.  He intended to make these feelings known.

In a letter to Abigail Adams, wife of John Adams, in 1804 Jefferson wrote:

            The Constitution . . . meant that its coordinate branches should be checks on each other.  But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

In other words, to allow one branch to decide what is permissible under the Constitution for all three branches goes against the idea of co-equal branches of government and the system of checks and balances set up by the founders to ensure one branch did not become superior to the others.  Jefferson says that to allow this is to set the judiciary in general and the U.S. Supreme Court in particular up as a deport or a tyrant.

In 1820, Jefferson wrote another letter on this subject, this time to William C. Jarvis.  In it, he wrote:

            To consider the judges as the ultimate arbiters of all constitutional question [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men and not more so.  They have with others the same passions for party, for power, and the privilege of their corps… their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.

Finally, in a letter to Edward Livingston in 1825, Jefferson explained what would be the end result will be if we do not remain vigilant with the task of keeping the Judiciary in check:

            This member of the Government was at first considered as the most harmless and helpless of all its organs.  But it has proved that the power of declaring what the law is, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.

By giving the Court the power to decide constitutionality and then allowing them to grow that power can do what no foreign army ever could; destroy our Constitutional system of government and put, in its place, a system where five appointed, not elected individuals can decide on the direction of 300 million without retaliation.  They can read rights into or out of the Constitution at their own discretion and it becomes the law of the land.  Does any of this sound familiar?

Is this how it was meant to be?  Did the Founding Fathers set up our system of government with the intent of the Judiciary being a superior branch?  Actually it was quite the opposite.  The founders did not trust unchecked judges any more than they did a monarch.  The British courts and magistrates had been co-conspirators in the oppression of the American colonies in the lead-up to the War for Independence.  With that still fresh in their minds, why would they grant such far-reaching power to the Judiciary?  The answer is, they didn’t.

Beginning in October of 1787 a series of 85 essays began being published in the New York press under the author’s name Publius.  Written by James Madison, Alexander Hamilton, and John Jay, these essays later became known as the Federalist Papers.  They were written to persuade the people of the state of New York to ratify the new Constitution.  Many of these essays discuss how the government would function under the Constitution and the ideas and principles underlying the Constitution.

Federalist Number 78, written by Alexander Hamilton May 20, 1788, discusses the Judiciary created by the Constitution.  How did the founders intend the Judiciary to function?  First, judges did not hold their positions for life, but during good behavior.

            The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government… any government, to secure a steady, upright, and impartial administration of the laws.   (A future entry will deal with the idea of good behavior and impeachment of judges.)

Describing the power of the Judiciary Hamilton writes:

            Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them… The judiciary, on the contrary, has no 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… It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.”

As you can see, the founders envisioned the Judiciary branch of the government to be the weakest link.  Its members are not elected by the people and thus are not answerable to the people.  This requires that they be kept at arm’s length.  The Judiciary was merely to be an interpretive organization; they were to interpret the law and insure that new laws that are in dispute do not conflict with the Constitution.  Is this an accurate description of how the Courts function today?  Antonin Scalia, Associate Justice of the U.S. Supreme Court, would disagree.  In a speech given at the Woodrow Wilson International Center for Scholars in Washington, D.C. on March 14, 2005, Scalia told the audience that:

            “So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people.  It is up to the Court to say what is covers…”

He finished this speech by saying 

            “I think the very terminology suggests where we have arrived – at the point of selecting people (to be judges) to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted.”