Offering common sense solutions for judicial discipline
History - continued
The term "high crimes and misdemeanors" might come to mind, but that phrase is used specifically to define impeachable offenses for the Executive Branch of government. (Article II, Section III.)
Since good behavior for judges is not defined in the Constitution, but other impeachable offenses are, WE say that good or bad behavior can mean ANYTHING Congress wants it to mean. Or in other words, since the Constitution does not qualify what a judge can be impeached for, a judge can be impeached for anything Congress desires. That seems right to us, because part of the genius of the Founders was that they anticipated tyrants would come in their various manifestations. By specifically NOT limiting Congress, all sorts of judicial misconduct could be dealt with as it came. (Somewhat like Bruce Lee's famous "Having no way as Way.")
Putting aside for now the issue of whether Congress sees it our way, you may think our interpretation is too open ended, that a judge could be impeached on a whim. But you saw how hard it was to remove Bill Clinton from office. So leaving the door wide open isn't a problem.
The BIG problem, as we see it, is that very early on in our history, the Judicial Branch started usurping power it never had. The famous case is Marbury v. Madison, decided in 1803.
Our history is a little weak here... we'll work on it. According to The History and Evolution of Judicial Independence from the ABA "Chief Justice Marshall's opinion in Marbury is sometimes wrongly assumed to be the intellectual genesis of the federal judiciary's power to declare acts of Congress void. That is understandable, given that the opinion cites no outside sources of authority in support of its conclusions."
(Sounds just like the Court today, claiming a "right to privacy.")
We've heard that the real problem with Marbury is that the Supreme Court decided it was the SOLE arbiter of what was Constitutional.
Since we don't know the full history yet, we're not quite settled here. We don't have a problem with one Branch of government telling another that some law is unconstitutional. After all, that's what President Jackson did (below), and that's expected in a system of Check & Balances. Where we part company is when a Branch tells the other Branches what IS constitutional and what it MUST do. Regardless of how we got here, that's where we are today.
We point out that in another famous case (Worcester v. Georgia (1832)), President Jackson refused to enforce a law the Supreme Court said was constitutional.
... the question in the case was the right of the national government alone to regulate and control Indian territory within the states. The Supreme Court upheld this right, and declared void laws of the state of Georgia which extended the jurisdiction of that state over the Indian territory within her borders.
The state of Georgia, however defied the mandate of the Supreme Court, and President Jackson refused to enforce it, on the grounds of his opposition to the policy of depriving the states of their right to control Indian territory in their limits.
It should be mentioned that President Jackson was within his constitutional rights in refusing to enforce the decision of the Supreme Court. Ordinarily the president would naturally cooperate with the Supreme Court but to compel him to enforce the court's decisions which were contrary to his own judgment would tend to destroy the principle of separation of powers.
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