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
The main reason for making the Federal judges independent and
politically irresponsible has not been generally recognized. Thus, in a
recent work Professor Channing, while expressing some disapproval of
this feature of our system, fails to offer a satisfactory explanation of
its origin. "Perhaps nothing in the Constitution of the United States is
more extraordinary," he tells us, "than the failure of that instrument
to provide any means for getting rid of the judges of the Federal courts
except by the process of impeachment. In England, in Massachusetts and
in Pennsylvania, judges could be removed by the executive upon address
by both branches of the legislative body.[56] In none of these cases was
it necessary to allege or to prove any criminal act on the part of the
judge. In colonial days the tenure of the judicial office had been of
the weakest. In the royal provinces, the judges had been appointed by
the Crown and had been removable at pleasure. In the charter colonies,
the judges had been appointed by the legislature, and their tenure of
office was generally for one year. The precariousness of the judicial
office in the royal provinces had more than once led to attempts on the
part of the colonists to secure greater permanency, because a permanent
judiciary would afford them protection against the royal authorities.
All attempts of this kind, however, had been defeated by the negative
voice of the government of England. Possibly the permanence of judicial
tenure which is found in the Constitution of the United States may be
regarded in some sort as the result of this pre-revolutionary
contest."[57]
As a matter of fact, however, there is nothing extraordinary or
difficult to explain in this permanency of judicial tenure which the
Constitution established. It was not in the charter colonies where
annual legislative appointment of judges was the rule, but in the royal
provinces that efforts were made by the people to secure greater
permanency of judicial tenure. They wished to give the judges more
independence in the latter, because it would be the means of placing a
check upon irresponsible authority, but were satisfied with a short term
of office for judges in the colonies where they were elected and
controlled by the legislature. Any explanation of the permanent tenure
of our Federal judges "as the result of this pre-revolutionary contest"
is insufficient. It was clearly a device consciously adopted by the
framers of the Constitution, not for the purpose of limiting
irresponsible authority, but for the purpose of setting up an authority
that would be in large measure politically irresponsible.
Public-domain text, read in full here on John Shaqi.
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