Hamilton: Congress can and must impeach judges for usurping legislative powers
Whenever someone raises the possibility of getting control of the Supreme Court by moving to impeach lawless judges, something I’ve called for many times, it’s pointed out that such a thing has never been done in America, that impeachment of judges under the Constitution is only authorized for personal misbehavior, not for exceeding their Contitutional powers, and therefore any attempt to impeach judges for their decisions would fail to get any political support. But now to my astonishment and gladness I find that Alexander Hamilton specifically addressed this very issue in the Federalist, arguing that impeachment and trial of judges by the Congress was the sure guarantee against judicial usurpation of the legislative function. From The Federalist no. 81:
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty from the general nature of the judicial power … from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. [Emphasis added.] There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords at the same time a cogent argument for constituting the senate a court for the trial of impeachments.
Posted by Lawrence Auster at April 01, 2005 01:18 AM | Send