"Neither Force nor Will." (Life Tenure for Federal judges)(Constitutional Stupidities: A Symposium)

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If we are to choose which provision of the constitution has turned out to be the stupidest, we must be allowed to use hindsight. In the beginning, there were provisions that made good sense in their day, but time has been hard on them. With the use of hindsight, I choose the second sentence of Section 1 of Article III: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behaviour...."

Perhaps there are others who, like me, find the phrase "during good behaviour" to be highly ambiguous. And some of these may even join me in finding the standard interpretation of that phrase rather strange. But I waive all such matters, and I am willing to go forward on the assumption that a community consensus has settled the meaning of the phrase, which is, that our judges shall serve for life, unless they choose to resign, or unless they are impeached. Having accepted that "good behaviour" means "life tenure," I will say that this provision is stupid.

However, I admit that this judgment does draw heavily upon the use of hindsight, and I do not wish to impugn the judgment of the drafters. When they wrote, the project of constitution-making was new, and the relevant experience was lacking. Having an independent judiciary was more theory than reality for them, and they had not experienced a regime in which judges declared governmental acts to be unconstitutional. Of course, judicial review was not foreign to them; they were familiar with the precedents and approved of the concept. Even so, it was not a lived reality. In setting up this new and powerful institution, they had to proceed upon assumptions, and it is not strange that some of these assumptions might turn out to be false.

Consider, for example, Hamilton's famous discussion of the judiciary in Federalist No. 78. Recall that the context for this discussion is whether the judiciary would have the capacity to upset the political balance of power.

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 executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or 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.

When I read this passage, I am always charmed by the elegance of such classic eighteenth century prose, and it always takes me a little while to cast off the spell and descend to the ugly task of analysis. When I do, my first reaction is, "How quaint!" And indeed, analysis seems almost beside the point. To be charmed by the antique quality of this paragraph is perhaps the only appropriate response; Hamilton's world seems so far removed from ours that it is otiose to assess his description of the judiciary as though it were a description of our judiciary. Consider, by way of a parallel, his description of the President as dispensing honors and holding the sword and his description of Congress as commanding the purse and prescribing rules. There is an antique charm to this description, but it would be both churlish and irrelevant to dissect it, to test its accuracy as political science. (Today, I suppose that one would start with the role of money and the mass media in politics, and go forward from that starting point, if one wished to talk about "the political rights of the Constitution. …