“The judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior.....” Art. III., Sec. 1 of the U.S. Constitution

It would not seem, at first blush, to be a difficult thing to discern what constitutes “good behavior”. One would think that if members of the judiciary were to remain sober, faithful to their wives, and in control of their tempers, that they would be in compliance with the “good behavior” standards of most any community in America. What then are the reasons for which judicial impeachment might be considered? Did the founders leave us no recourse to deal with judges who, although behaving appropriately, render “bad” opinions? Short of taking up arms, what avenues are available if it appears that the Judicial branch of government has usurped power far in excess of their constitutional limitations?

It will be the focus of this paper to examine the problem of judicial activism and answer questions about why it is a problem, whether it is a problem that could be prevented, and what can or should be done about it. The issues are complex and the interests represented are many. A universal solution may not be possible since there are two distinctly different philosophies in conflict.
 

The philosophical principle upon which judicial activism is founded is called “Moral Relativism” and it is as old as Adam. However, in recent years, it has gained wider acceptance among the intellectuals, from which class comes judicial raw material. Moral Relativism, in a nutshell, is the philosophy of humanism. It places the intellect and reason of man at the pinnacle of wisdom and posits that man alone has the answer to his dilemma.

Moral Relativism was the over-arching philosophy of Justice Oliver Wendell Holmes who served on the Supreme Court from 1902 to 1932. Exerting tremendous influence, he is credited with being the first Supreme Court Justice to say that the U.S. Constitution was an organic document; that is, subject to changing interpretation. When this philosophy is accepted, the Constitution is no longer the “Supreme Law of the Land” but rather the judicial branch becomes supreme law, thus upsetting the balance of power between the three branches of government - a clear violation of the U.S. Constitution!

Moral Absolutism is the antithesis of Relativism. Moral Absolutism maintains that man’s nature is the source of his problems and that since his nature remains unchanged, his basic conflicts can be resolved (or at least held in check) with a set of constant values or rules which are the standard by which his behavior is judged. Absolutism teaches that mans behavior must conform to the fixed standards while Relativism teaches that the standards must conform to man’s behavior.

Within the context of “judicial activism” and constitutional interpretation, Moral Absolutism maintains that the Constitution is the “Supreme Law of the Land” and the standard by which our behavior is judged. It keeps all branches of government, and all public officials within those branches bound to the constitution by their oath of office. Clearly, these two philosophies are diametrically opposed and mutually exclusive, at least as foundation principles of self-government.

The United States Constitution is a legally binding contract between the people and their agents, or representatives. In the historic Virginia case of Kamper v. Hawkins (1793), some of the nations top legal minds examined in detail and clarity, the principles of the founding fathers regarding the proper role of each of the branches of government. The basis of power is with the people themselves. Judge Spencer Roan, who later became the chief justice of the Virginia Supreme Court, wrote in 1793, “I consider the people of this country as the only sovereign power. I consider the legislature as not sovereign but subordinate; they are subordinate to the great constitutional charter, which the people have established as a fundamental law, and which alone has given existence and authority to the legislature....” Kamper v. Hawkins 1793

In the same case, articulating the limitations of the judiciary, Justice Henry said, “The judiciary, from the nature of the office, and the mode of their appointment, could never be designed to determine upon the equity, necessity, or usefulness of a law; that would amount to an express interfering with the legislative branch, in the clause where it is expressly forbidden for any one branch to interfere with the duties of the other. The reason is obvious, not being chosen immediately by the people, nor being accountable to them, in the first instance, they do not, and ought not, to represent the people in framing or repealing any law.”

. When a contract is negotiated and concluded, there are specific terms of the agreement which obligate the parties to act in a certain way. The terms and conditions are defined in language which is intended to avoid confusion and which is understood to have the same meaning to both parties. These terms and conditions are then settled and are binding upon the parties when signed by them. When the parties begin to act in accordance with the contract, the contract is said to be enforceable. Usually, there are penalty provisions for material breach, or failure of one party to execute the terms or meet the conditions specified in the contract. Once it becomes enforceable, the contract may not then be changed without the expressed knowledge and consent of both parties.

When our founders established the terms of government for this new nation in the form of a written constitution, and those terms were ratified by the people, the contract was “enforceable” in the legal sense. A new national identity was established and a course charted for the future which was both empowered and constrained by the new constitution. Provisions were adopted which gave the control over the government to the people through their elected representatives. The elected representatives, in turn, appointed certain other officers to manage those aspects of national government which needed the guiding hand of a professional. The fixed principles however, are immutable and expressed in written form so as to preclude any contrary law from coming into existence.

The judicial branch is not the most powerful branch of the federal government- it is an equal branch. Judicial officers may not make the law. Justice Iredell, in another 1793 case, Chisolm v. Georgia, stated , “I have no hesitation to say, that any act to that effect [exceeding legislative authority] would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others which we are note only bound to consult, but sworn to observe; and therefore, where there is an interference, being superior in obligation to the other, we must unquestionably obey that in preference...There is no part of the Constitution that I know of, that authorizes this Court to take up any business where they [the legislature] left it and, in order that the powers given in the Constitution may be in full activity, supply their omission by making new laws for new cases; or, which I take to be the same thing, applying old principles to new cases materially different from those to which they were applied before.”

Justice Samuel Chase spoke very clearly on the matter of “original intent” which he believed should be the only legitimate basis for interpreting the law. In a nutshell, he argued in Calder v. Bull (1798) that, “The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it......This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the do not require; nor to refrain from acts which the laws permit.”

In other words, the natural limits of the law are found in the reasons for which people contract together in society. Chase goes on to say in Calder V. Bull, “There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.”

Justice Chase assumes that these principles are both knowable and “normal” and that they are historically verifiable. For the next 150 years or so, the Supreme Court held tightly to these principles and the national body of law was kept to a workable minimum.

A corollary principle found early in the judicial history of our nation is that of civic duty. When a contract is finalized, the principal parties are bound by the terms of that agreement. When the people elect representatives and those representatives appoint others to oversee the affairs of state, all parties swear an oath of allegiance to the U.S. Constitution. In the act of swearing the oath, and the subsequent acts of assuming the duties , such elected and appointed agents of the people bind themselves to the terms of the agreement. Since they are under oath to the Constitution, they are presumed to be knowledgeable of its contents and meaning. If, at any point, these agents of the people disregard the Constitution and substitute their own meanings, they are in material breach and subject to the penalties thereof.

In Marbury v. Madison (1803), Chief Justice John Marshall said with regard to the Constitution that, “...It is apparent that the framers of the constitution contemplated that instrument as a rule for the government of courts as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character....Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

What is interesting here is that not only is the principle affirmed that the constitution is the supreme law of the land, but that justices have a “special” conduct required in that regard. “Good Behavior” was understood to mean that the professional acts (behavior) of a justice were to be subject to the constraints of his public oath. Founder George Mason was another early proponent that "maladministration" be included as a ground for impeachment.

"Nothing was further from the minds of the Framers of the Constitution, than that the Supreme Court should ever make the Supreme Law of the Land." Chief Justice Marlin T. Phelps, Arizona Supreme Court

The U.S. Constitution establishes a form of government firmly anchored in historic principles of truth and justice. It was widely understood and agreed that individual self-restraint and a degree of tolerance towards others, was critical to self-government. Further, the awesome power of government was deliberately divided into three balanced branches, which were then subdivided to prevent any branch of government from having the ability to circumvent the will of the people.

It is very apparent from many of the Supreme Court decisions of the last thirty years or so that the judicial branch is able to impose its dictates on the American public quite apart from their will. An increasing amount of social engineering is being performed by the courts to effect changes that would never pass legislatively by an act of the people. That the will of the court is able to replace legislative action is a testimony of the unwillingness or inability of congress to provide the bulwark of protection that is theirs alone to provide.

Part of the argument used to justify the imposition of Federal Law on state governments, is something called “the incorporation view” of the fourteenth amendment of the U.S. Constitution. It is suggested by some scholars and most of the sitting members of the current Supreme Court, that the fourteenth amendment grants authority to the federal government to apply the Bill of rights to all of the states. In other words, the amendment which acknowledges the full citizenship of newly freed black slaves in 1865 and extended that citizenship to be binding in all the states, somehow is interpreted to also apply the bill of rights to all stated governments. This is a recent, though widely held view, and is entirely inconsistent with anything written by the founding fathers or the first hundred and fifty years of American Jurisprudence.

Alabama Circuit Judge, Roy S. Moore, in a recent (March 1997) address at Regent University Law School in Virginia Beach, made the argument that is more in keeping with historical interpretations of this amendment. Judge Moore said that, in the first place, the federal constitution is a document which constrains the federal government. It is not binding on the several states. The tenth amendment specifies that the powers not delegated to the federal government are reserved to states and to the people. Secondly, the other eight preceding amendments specifically enumerate the rights of citizens which are protected from federal abridgement. The protections in the Bill of Rights are protections of the citizens FROM the federal government. Further, claims Judge Moore, even if the fourteenth amendment DID extend the power of the federal government into state domain, it could not prohibit the states from enjoying freedoms that are enjoyed by the federal government.

Since the federal government has prayer before legislative sessions, so can he, Judge Moore asserts. Since the federal court is opened with the words, “God save this honorable court”; since the congress employs chaplains; since we are by law “one nation under God” (1954); since the currency is printed with “in God We Trust; and whole long list of similar arguments, the federal government cannot deny to the states the exercise of religion which is practiced at the federal level. In short, the constitution historically held that no branch of the U.S. Government may dictate to the several states, any level of religious expression, and further, even the fourteenth amendment DID bind the states to the federal Bill of Rights (which it does NOT) the states could enjoy a level of religious expression at least equal to that of the federal government. It is a compelling argument.

Thomas Jefferson, letter to William Johnson, 12 June 1823: "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."

The Constitutional provision for impeachment of judges who do not serve in “good behavior” is sufficient to control the despotic judiciary if “original intent” is applied. Good behavior was then considered to be the performance of one’s judicial function in a professional manner, within the context of established law, and according to the oath of allegiance to the constitution. Impeachment has been rarely used so is often viewed as an ineffective tool.

Two difficulties arise when considering this option. First, the meaning of “good behavior” when originally applied to Art 3 Section 1 of the U.S. Constitution is not considered valid by many scholars today. The only impeachment trials for justices in this era have been for "extra-judicial" crimes and then only under the most extreme circumstances. Second, such proceedings are hailed by the media and the opposition as “purely political” and due only to “philosophical differences.”

Supreme Court Justice Samuel Chase was impeached in the early 1800s, but his acquittal in 1805 effectively halted the use of impeachment to remove judges for what has been called "merely political reasons." What can be inferred from the writers of the day is that, rather than high crimes and misdemeanors, “good behavior” can be more broadly applied to the judicial inability to make sound “legal” decisions. Until the 105th Congress, the process of impeachment has been considered unwieldy and ineffective in the removal of a "merely" corrupt judge.

Impeachment proceedings are being considered now by Republican congressional leaders. House Majority Whip Tom Delay said in a recent Washington Times article, that judicial activism has become such a problem that congressional leadership must act. The "articles of impeachment are being written right now" against one judge in Texas, and at least two other judges are candidates for impeachment, Mr. DeLay said at a meeting with editors and reporters at The Washington Times. The article, written by Ralph Z. Hallow, went on to say, “Republicans have long complained that left-leaning judges tend to act like lawmakers, undoing legislation or ballot initiatives they don't like and rewriting laws to suit their ideological predilections.”

The move has stirred up opposition from predictable quarters. Laura W. Murphy, director of the Washington office of the American Civil Liberties Union, said in the above referenced Times article: "This is a coordinated and sophisticated strategy of intimidation. You are not talking about someone accepting bribes or personally being convicted of a crime. "This is a very dangerous trend that should be taken into account along with the slowdown in the confirmation of federal judges by the [GOP-controlled] Senate," she said.

The American Bar Association also expressed concern. "Impeachment is such a rare situation," said ABA President N. Lee Cooper. "I don't think there is anything in the Constitution for impeachment for political correctness or incorrectness." Mr. Cooper said a better remedy for judicial-activism foes is for the Senate to deny confirmation to activist judges. But he also acknowledged that a judge's history before joining the federal bench is not necessarily an indicator of whether he or she eventually will legislate from the bench.

Paul Weyrich, in a recent editorial, stated, “...This situation represents progress and is an indication of the growing anger on the part of the public about the federal judiciary. When Tom Jipping set about to find 100 organizations that would join the Free Congress Foundation to protest activist judges, he wasn't sure anyone would agree. Today the number of organizations is climbing toward the 300 mark and several Senators have even signed a pledge to oppose judicial activism.” Via the Internet, 17 March, 1997

Impeachment is an unpleasant action to even consider, let alone undertake, but it is apparently the only non-violent legal action available to rein in a runaway judiciary. For the first time in 30 years, congress has a Republican majority. It is not coincidental that for the first time in thirty years impeachment is being considered as the mechanism to bring all branches of the federal government in line with the U.S. Constitution.

Written by: John A. Sterling, Virginia Beach, VA. April 1997

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