The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To DemocracySmith, J. Allen (James Allen)
History
The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To Democracy
Smith, J. Allen (James Allen)
Constitutional history -- United States; United States -- Politics and government
Moreover, the authority of the courts is "the most vital part of our
government, the part on which the whole system hinges."[52] This is true
for the reason that the Federal judiciary is not only the most important
of our constitutional checks on the people, but is also the means of
preserving and enforcing all the other checks. To enable the Federal
judges to exercise these important and far-reaching powers, it was
necessary to make them independent by giving them a life tenure. This
provision was in perfect harmony with the general plan and purpose of
the Constitution, a document framed, as we have seen, with a view to
placing effectual checks on the power of the majority. As a means to the
end which the framers of the Constitution had in view, the independence
of the judiciary was an admirable arrangement.
Hamilton says: "Upon the whole, there can be no room to doubt that the
Convention acted wisely in copying from the models of those
constitutions which have established _good behavior_ as the tenure of
their judicial offices, in point of duration; and that so far from being
blamable on this account, their plan would have been inexcusably
defective, if it had wanted this important feature of good government.
The experience of Great Britain affords an illustrious comment on the
excellence of the institution."[53]
This is quoted with approval by Story in his Commentaries on the
Constitution and this same line of argument has been followed by legal
and political writers generally. But with all due respect for the
eminent authorities who have placed so much stress on the political
experience of other countries, we may venture to ask if the parallel
which they have assumed really exists. Is the use made of this argument
from analogy warranted by the facts in the case? Are we sure that the
political experience of England proves the wisdom of an independent
judiciary? This can best be answered by referring to the circumstances
which gave rise to the doctrine that the judges should be independent.
In England formerly the Crown appointed the judges and could remove
them. This power of appointment and removal placed the courts under the
control of the King and made it possible for him to use them as a means
of oppressing the people. A striking example of the way in which this
power could be abused was seen in the career of the notorious Jeffreys,
the pliant judicial tool of the cruel and tyrannical James II. To guard
against a repetition of this experience it was urged that the judges be
made independent of the King.
Public-domain text, read in full here on John Shaqi.
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