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Although we have been taught that the three branches of our central government were created as co-equal parts, it has oftentimes been claimed that the federal judiciary is inherently the weakest branch of the three branches of government; because "having no influence over either the sword or the purse," "it can never attack, with success, either of the other two" branches.  At the time of the writing of the Constitution, we were also warned that liberty would have nothing to fear from this branch alone, but "everything to fear from its union with either of the other departments."*   In practice, over greater than two centuries, experience has taught us that it is not just the union of the judiciary with another branch that we must fear, but the structure of the judicial branch as itself.

It is rational to presume that the federal courts were intended as an intermediary between the People and the other two branches of government in order to keep the latter within the limits prescribed to them in the Constitution.  Lifetime appointments, we are told, were created to develop what was commonly called the independence of the courts; which would ensure the co-equal nature of the central government.  In reality, though, lifetime appointments were instituted to protect the government from the People; as an "excellent barrier to the encroachments & oppressions of the representative body."*

The Constitution, being modeled in many ways after the British government of the time, it is necessary to have an understanding of why the judges in England were given lifetime appointments.  The greatest reason was to ensure that they would be placed in a situation in which they would not be unduly influenced by the crown; in a situation where they would not rely on the crown for their employment and pay; thereby reducing the crown's influence over the courts, and reducing their tendency to rule in favor of increasing the power of the executive.

This does not apply to the United States, as we have do not have an hereditary monarch; and those who appoint the judges cannot hold their office for life, nor do they inescapably pass their power on to their appointed descendents.  The arguments for lifetime appointments used in Britain, therefore, lose an appreciable portion of their clout when applied to the formation of government in America.  Although it is clear to me that lifetime appointments are necessary to prevent the judiciary from becoming no more than a cabal of politicians, much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account, rendered totally independent, and above all effective and practical control.

It has been shown in a previous paper that judicial branch is authorized to decide not only the actual meaning of the words of the Constitution, but also according to the spirit and intention of it; based on Article 1, Section 8 of the Constitution.  By joining law and equity in this section, the judges have been given almost discretionary power.  It has also been established in a previous paper that, having this great power, the courts are strongly inclined to give the Constitution such an explanation and construction so as to advance the powers of the central government as much as possible, to the denigration of the liberty of the People.  In the exercise of this power, the judiciary is neither subordinate nor equal to the legislature, but rather, they are superior to it.  If Congress were to pass any law that is inconsistent with the meaning that the judges give to the Constitution, it is to be declared null and void; and therefore, in this capacity, the power of the courts is greater than that of the legislature.

Our experience has shown it to be evident that the judges under our system are independent in the strictest sense of the word; there is no power above them that can control their decisions or correct their errors.  There exists no authority that can remove them from office for any errors in judgment; for creation of extra-constitutional precedent, or for lack of personal capacity.  In many situations, their power is actually greater than that of the federal legislature.

It is pertinent to observe that the Supreme Court has the power, as the last resort in all cases, to determine all legal questions that may arise on the meaning and the construction of the Constitution.  In determining these cases, the court always starts by assuming certain principles from which they will base their reason and form their decision.  These principles, whatever they may be, once they are fixed and reaffirmed by judicial precedent, are then adopted by the legislature; and, therefore, become the rules by which they will determine their own powers as well.

Laws, it is true, are made by the legislature; but the judges, in their explanations of them, and in directing the administration of them, have great and far-reaching influence for preserving or destroying our liberty; and more importantly, for changing the nature of the government.  It is reasonable to affirm that the judiciary has not been able to directly control the actions of the legislature; but, it is easy to see, that they have, in small steps, altered and enlarged the power structure of all three branches of the central government with their adjudications.  Since the courts are given supreme power to resolve, in all cases that arise, what the Constitution literally means, the legislature also cannot, therefore, create or execute a law which opposes the court's explanation of the Constitution; unless the construction of the system itself were improved so that the legislature could make a new and higher law that would nullify the precedent created by the errant decision of the court.

From these observations, it is apparent that the decisions of the judicial, on the Constitution, will continue to become entrenched as the supreme law of the land, and determine the construction of the powers of the other two branches of government.  Therefore, the judges under our current structure, effectually control, and are superior to, the legislature.  The judicial branch in this system of government has power greater than the legislature, and supercedes any degree of power previously given to the courts by any free government on earth.  There is no power above them that can control or correct any of their decisions.  There is no body or authority that can remove them from service, and they cannot be controlled by the laws of the legislature.  To summarize, they are independent of the People; they are independent of the legislature; they are independent of every power on earth.

The supreme power in any free government must be responsible to the people.  The separation of powers in the Constitution makes this responsibility impossible, especially in regards to the judicial branch.  The only clause in the Constitution which provides for the removal of judges from office is that which states that "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."  From this section, it is clear that judges, who are civil officers, are impeachable only for committing crimes.  Treason, bribery, and the general terms of high crimes and misdemeanors are included; while errors in judgment, or a lack of capacity to discharge the duties of office, can never be expected to be included in these words, high crimes and misdemeanors.  A judge may make repeated mistakes in giving judgment, or display incompetence for the duties of the courts, but yet there may be no evidence of these aforementioned violations.  To support the charge against a judge, it is required to provide evidence that their errors were the result of criminal intent; thus establishing the final pillar for a judiciary that is beyond the control of all authority.

Had the great power of determining the construction of the Constitution been entrusted to the legislature rather than the judiciary, our representatives would have explained it at their own risk.  If they surpassed the powers given to them by the People, or if they attempted to find, through the spirit of the Constitution, more power than was explicitly given to them, the People, from whom they received their power, would have the ability to remove them from office, or punish them for their extra-constitutional actions, and preserve liberty.  In examining the central government, I can see no other countermeasure that the People can have against their federal rulers for encroachments and usurpations of this kind.

A Constitution is a contract between a people and their rulers.  If the rulers break the terms of the contract, then those people have a right, and a duty, to remove them from power.  In order to enable them to do this with greater competence, those individuals whom the People choose as their rulers for certain periods of time, must have the power to determine the spirit of the contract; if they determine contrary to the will and understanding of the People, the remedy will be brought before the People at the time when these rulers are to be considered for re-election; and the People will have the power to eliminate the evil which they have originally chosen.  But, when this power is lodged in the hands of those who are completely independent of the People, independent of their representatives, and who are not, constitutionally, accountable for their opinions, errors, and actions, there is nothing left to control them, but a complete alteration of the Constitutional contract.

Judicial power is of such a type, that when we have altered and determined new limits of its power, it will still be formidable and somewhat despotic; leaving a great deal of trust to the knowledge and integrity of the judges.  This, and previous considerations in these papers, demonstrate how cautious a people must be when determining the future structure of this branch of government; for the rule of law, rather than an ever-changing law, is essential for the preservation of freedom.  A proper organization of the judicial branch is of the utmost importance, because, in our future, either a neglected Constitution, or an arbitrary execution and administration of it, will only lead to a despotic government; and revolution.

I will embark on an examination of the executive branch of the central government in my next paper, on January 26, 2006.


In the spirit of liberty and prosperity,


Franklin

* Federalist #78