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Article 3, Section 1



Document 35

William Rawle, A View of the Constitution of the United States 199--201, 274--80 1829 (2d ed.)

No form of government is complete unless it be accompanied with a judicial power.

To make laws and to execute them are the two great operations of government; but they cannot be fully and correctly executed unless there is somewhere resident a power to expound and apply them. This power is auxiliary to the executive authority, and in some degree partakes of its nature. But it is also required at times to control the executive, and what it decides to be unlawful, the executive cannot perform. It may also in some degree be said to participate in the legislative power. Its construction of the acts of the legislature is received as binding and conclusive, although it does not prevent the legislature from repairing its own defects, or clearing up its own ambiguities by subsequent laws, operating on subsequent cases. A high function also appertains to the judiciary in the exclusive right to expound the Constitution, and thereby to test the validity of all the acts of the legislature.

To the people at large, therefore, this institution is peculiarly valuable, and ought to be eminently cherished by them. On its firm and independent structure they repose with safety, while they perceive in it a faculty which is only set in motion when applied to, but which when thus brought into action, proceeds with competent power if required, to correct the error or subdue the oppression of both or either of the two other branches. A Constitution in which there was an omission to provide an adequate judiciary could not be successfully carried into effect; and if instead of being separate and independent, this power were either blended with the other two, or those who administer it were dependent on the will and pleasure of others, its lustre would be tarnished and its utility destroyed.

The Constitution of the United States, therefore, required a judicial power, not as an adjunct, but as a necessary component part. The extraordinary complications of the authority of the United States with that of the several states, which seem at first view to throw so many difficulties in the way, fully prove its necessity. The state tribunals are no part of the government of the United States. To render the government of the United States dependent on them, would be a solecism almost as great as to leave out an executive power entirely, and to call on the states alone to enforce the laws of the Union. But it is not inconsistent with this principle that the United States may, whenever it is found expedient, elect to make use of a state tribunal to the same extent as any foreign power may, if it thinks proper to institute suits in the courts of other countries, which is in civil cases only.

The judicial power is general or limited, according to the scope and objects of the government. In a word, it must be fully and exactly commensurate with that of the legislature. It cannot by any terms of language, be made to exceed the legislative power, for such excess would be inconsistent with its nature. If by express words it should, on the other hand, be restrained so as to embrace only a part of the subjects of legislation, it would impair the integrity of the whole system. The protection which it was intended to afford, in regard to the other branches of government, being confined to parts of their conduct, instead of embracing the whole, would produce the incongruous mixture of a theoretic, general power with partial debility and impotence. If general terms are used in describing it, there is no difficulty in defining its proper extent.

In the Constitution of the United States we perceive, not the express creation of a judicial power, but the recognition of it as a necessary part of the government, in which light it was justly considered and has been universally accepted. Its power extends to the great selected objects already noticed, and it is the duty of those who have to administer it, to carry it to that full extent, but never to exceed it. Experience has already shown that from a wise and temperate administration, the apprehension of inconvenience from serious collisions between the state judicatures and those of the United States was unfounded. It must be confessed that the merits of our Constitution have received ample support from the prudence and judgment with which it has been administered, and in no respect has a sounder discretion been exhibited than in the judicatory. If any objection could be sustained to the procedures of the judges of the supreme and circuit courts, it would be that of excessive caution, arising from a systematic anxiety not to exceed their jurisdiction. And it is a strong argument in favour of an elective government, that those men in whom the power of appointment is vested by the choice of the people, have, in regard to these judicial officers, exercised it with so much caution, judgment, and success.

. . . . .

From these general views of the judicial power, we collect that it is in the nature of a principle incorporated for useful purposes into the Constitution, vested in various agents, some of whom derive their authority from the United States, and some from the states, and holding their offices, as will appear by reference to those constitutions, on various tenures, but all possessing the right of deciding on the validity of a law.

If this power is in itself inordinate, if it is not consistent with the true interests of the people, it might have been excluded from, or carefully qualified in, the Constitution; but it has been established by the people on full deliberation; and a few additional reflections on its nature and utility may be admitted.

In the first place, we may observe, that a judicial power with such extensive attributes, is probably peculiar to this country. Where there is not a fixed and settled constitution, whether written or unwritten, which cannot be altered by the legislature, the judiciary has no power to declare a law unconstitutional. In such countries, the people are at the mercy of the legislature. The appeals which they may make to their constitutions are disregarded if they cannot be enforced, and the constitution possesses merely a nominal value. It tends indeed to excite discontents, by exhibiting rights that cannot be enjoyed, and promising restraints on government that may be broken with impunity.

The Constitution of the United States was not framed, in this respect, on ground new to us. The principle had been previously inserted in all the state constitutions then formed. It has been preserved in all those since established, and none of the alterations which we have heretofore noticed, have been extended to this point.

We may then inquire, in what mode or form of language it could have been excluded from the Constitution, and what would have been the effect of such exclusion. Being in itself a necessary incident to a regular and complete government, its existence is implied from the mere fact of creating such a government; if it is intended that it should not be commensurate with all the powers and obligations of the government, or that it should not form any part of it whatever, express terms of qualification or exclusion would certainly be required.

Now it would be difficult to reconcile the minds of freemen, to whom was submitted the consideration of a scheme of government, professing to contain those principles by which a future legislature and executive were to be regulated, to any declarations that a subversion or abandonment of those principles, by either branch, and particularly by the legislature, should be liable to no resistance or control. The judicial power potentially existed before any laws were passed; it could not be without an object; that object is at first the Constitution. As the legislature proceeds to act, the judicial power follows their proceedings. It is a corrective imposed by the Constitution on their acts. The legislature are not deceived or misled. Nothing indicates that they alone are to decide on the constitutionality of their own acts, or that the people who may be injured by such acts, are unprovided with any other defence than open resistance to them. But without an adequate power in the judiciary to the effect required, the people would either be driven to such resistance; obliged to wait till they could obtain redress through the exercise of their elective powers; or be compelled to patient submission.

The rights of the people are better secured by the general undefined judicial power, necessarily inferred from the general language of the Constitution itself, pre-existing in their own state constitutions, and never surrendered to the United States. In the last mentioned aspect, it would appear surprising that those who were most apprehensive of the self-increasing power of the general government, did not perceive the bulwark of their safety. The courts and the judges of every state possess, as before observed, the right to decide on the constitutionality of a law of their own state and of the United States. The principle itself, and not the mere tribunal, constitutes the public security. That such decisions are subject to the appellate jurisdiction heretofore spoken of, forms no objection to their usefulness. The object of this jurisdiction is to produce uniformity. Instead of reducing, it enhances the value, while it proves the universal bearing of the principle itself.

In the organization of this power thus salutary, thus necessary, is found the only difficulty. To render it wholly independent of the people, is objected to by many: to affect its necessary independence by the modes of creating and appointing its ministers, is liable to equal objections. In the first case, arbitrary and despotic proceedings are apprehended. It is supposed to be the natural disposition of man, when placed above control, to abuse his power, or, if no corrupt motives produce this consequence, there sometimes are found a laxity, a carelessness, a want of sufficient exertion and deliberate judgment in the exercise of it. On the other hand, if instead of availing himself of his own knowledge and capacity, the judge submits to be governed by the opinions of others; if he allows the desire to retain his office, the fear of giving offence, or the love of popularity, to form any part of the ingredients of his judgment, an equal violation of his trust is apparent. It is therefore not without anxiety that the patriotic mind endeavours so to regulate the organization of this all essential power, that it shall be safely steered between the two extremes.

In all governments retaining a semblance of the preservation of popular rights, it is believed that the structure of the judicial power ought to be founded on its independence. The tenure of office is therefore generally during good behaviour. But in some of our state governments, judges are appointed for a term of years. In some, the appointments are made by the executive, in some by the legislative power. The mode of appointment is of little consequence as to the principle, if, when it has been made, the magistrate is independent of the further favour of the appointing power. The more important question is the condition and duration of the appointment. The condition of good behaviour necessarily accompanies all judicial appointments, for whatever term they may be granted. There are none during pleasure in this country, although the case is otherwise as to some high judicial stations in England. Cases of misbehaviour are therefore to be provided against. Honest errors in judgment do not amount to misbehaviour. The court of the last resort is to correct all those which take place in the previous tribunals. If this court shall itself be deemed to have committed an error, there can be no redress, because from the nature of things, there must be some point at which to stop: and it is better that an individual should sustain an injury, than that the whole system should be thrown into disorder.

This last resort may be differently constituted, but there must be some final mode of deciding.

On some occasions of dissatisfaction with the decisions of the supreme court, different modes of revising even their decisions have been suggested. The last of these known to the author has been to convert the senate into the final court of error and appeal.

Of their competency in a practical view, no doubt can be entertained, but of the benefit which the public would derive by their unavoidable suspension of legislative business, with other high functions devolved on them, while their time was occupied in the trial of causes, there would be much room for doubt.

But, however this ultimate tribunal may be constituted, it is still to be the last resort; and, since human infallibility can no where be found, it may also pronounce erroneous judgments for which there would be no redress.

In all these institutions we must therefore recognise the imperfection of man, and content ourselves with the intention to act rightly, although the decision, in the apprehension of many, may be wrong.

In some states, a power is given to the executive authority on the application of a certain proportion of the legislature to remove a judge from office. Reasons will occur both for and against such a provision. If a judge should be incapacitated by infirmity or age, or be otherwise, without any fault of his own, prevented from performing his duties, he would not be a proper subject for removal by impeachment; yet, where duties cannot be performed, the officer should not be continued. The incapacity should, however, be established in the specific case, and to lay down a general rule, that on the attainment of a certain age, the judge shall no longer be admitted to act, may withdraw from the service of the public a person capable of being highly useful to them. In New York the commission expires at the age of sixty years; in Connecticut at seventy years; and thus their constitutions seem to intend to impose laws on nature itself, or to drive from their own service men in whom may still reside the most useful faculties, improved by time and experience. The Constitution of the United States abstains from this error.

But the power of removal intended, in those states where it is found, to be exercised in cases of actual and not implied incapacity, may in practice be carried further, and if the representatives of the people hold the opinion that the proceedings of a judge are contrary to the public interests, an application for his removal may be made to the governor. If, for instance, he has decided that one of their laws is unconstitutional, and they retain a different opinion, or if his constructions of, and proceedings under a law not objectionable in itself, differ from their own views of the same subject, dissatisfaction with his conduct which may be very honestly felt, may occasion an address for his removal, not as a mode of avoiding or reversing his decisions, for that could not be the effect, but as an example to others, and perhaps in some degree, it might be calculated for a punishment to himself.

Now, laying aside all party considerations which sometimes may operate, perhaps unconsciously, with the best men, we must inquire into the principle on which such removal would be founded, and we shall find it to be that of setting up the judgment of the people through their representatives to correct the judgment of the judicial power.

If the Constitution of the particular state fairly admits of this construction, it is the will of the people, and must be obeyed. It is a control reserved to themselves over the general character of the judicial power, and to that extent impairs its absolute independence. In the absence of corrupt motives, which might justify an impeachment, it is the only mode of rectifying a course of erroneous judgments tending to produce public injury. But it is liable to the objection that those who thus undertake to decide, are seldom so well qualified for the task as those whose peculiar studies and occupation may be considered as having enabled them to judge. Another objection is, that removal in this manner being in every sense an evil, a fear of displeasing the legislature may always hover over the mind of the judge, and prevent his being the impartial and inflexible mediator between the legislature and the people, which the people intended he should be.

The advantages and disadvantages of the whole subject must have been duly considered by the framers of our Constitution, and the people at large have confirmed the result of their judgment.

There is, however, one power vested in the legislature, of which they cannot be deprived. They are authorized "from time to time" to ordain and establish tribunals inferior to the supreme court, and such courts they may at any time abolish. Thus, as before noticed, the act of 1801, establishing certain circuit courts was repealed in 1802, and the commissions granted to the judges were consequently avoided.

To this instance we may be permitted to refer, for the purpose of showing the high independence of all party considerations, that appertains to the character of a judge. The supreme court, which affirmed a decision by which the validity of the repealing act was established, was at that time composed entirely of men politically adverse to that which, by a sudden revolution, had become the predominant party in the legislature. Yet the decision was unanimously given, one of the judges only being absent on account of ill-health. And such are the true nature and spirit of a judicial institution, that there can be no doubt that the same principle; the same entire repudiation of party spirit, would govern men of all political impressions, when required to act on similar occasions by the Constitution and their country. Party spirit seldom contaminates judicial functions.

On the whole, it seems that with the right to new model all the inferior tribunals, and thereby to vacate the commissions of their judges, and with the power to impeach all judges whatever, a sufficient control is retained over the judiciary power for every useful purpose; that it is a branch of government which the people have the strongest motives to cherish and support, and that if they value and wish to preserve their Constitution, they ought never to surrender the independence of their judges.


The Founders' Constitution
Volume 4, Article 3, Section 1, Document 35
http://press-pubs.uchicago.edu/founders/documents/a3_1s35.html
The University of Chicago Press

Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.

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