Submitted by: Nancy Battle
Rep. Steve King of Iowa said: "Constitutionally, Congress can reduce the judiciary to nothing more than Chief Justice Roberts, sitting at a card table with a candle"
Now that’s why if Congress passes a law and we the people think it’s wrong, we can throw them out of Congress and change the law. We’re the sovereign; we get the final word on whether the law’s any good or not. But if you put it over to the judges, they pass a ruling and say well, we determine this law is not a good law, what recourse is there from that? You wait another 70 years until you get a new court and get a different decision? No. At that point, the judiciary has become your sovereign. That’s exactly what John Marshall pointed out. Thomas Jefferson agreed emphatically.
Jefferson said, “The opinion which gives to the judges the right to decide what laws are constitutional and what not would make the judiciary a despotic branch.” He said the Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. He said guys, if you’re going to say that the judges have the right to decide what’s constitutional and what’s not, not only does that make the judiciary a despotic branch, it makes the Constitution like something of wax that they can twist and shape into any form they please.
That’s why we did not have the viewpoint, and that’s why it is the third myth that only judges can determine what’s Constitutional; and they do that primarily through judicial review.
The fourth myth is that federal judges hold lifetime appointments. Man, we’ve heard that all of our lives. That’s in textbooks; federal judges have lifetime appointments. It may be in the textbook but try to find that in the Constitution. As a matter of fact, do you remember back to Sam Adams? One of the complaints raised way back in 1765 that went for a decade up to the Declaration; that they fixed in the Declaration of the State Constitution then the Federal Constitution, was lifetime appointments. John Adams said the two problems we got is lifetime appointment of judges and judges that aren’t accountable to the people. We’ve got to solve those problems, and that’s what they did.
Well, how did they solve the problem of lifetime appointments for judges? All you have to do is read Article III of the Constitution, very short. It says this, “The judges both of the Supreme and inferior courts…” Now remember, the Supreme Court is the only court established by the Constitution. Inferior courts is any courts that congress might decide. The Constitution says, “The judges both of the Supreme and inferior courts shall hold their offices during good behavior.” Whoa. That doesn’t say lifetime. How long can they hold their offices? During good behavior.
What does good behavior mean? Well, let’s go back to the Founding Fathers who dealt with that clause. As a matter of fact, John Calhoun’s a good example. John Calhoun is one of the authors of the Judiciary Bill, and it was a judiciary bill that came after that big fight between Adams and Jefferson over judges. So they get the judiciary back under control – remember, Congress has the power to do that – and so John Calhoun, one of the authors of that second judiciary bill, he made it real clear. He said, “We all fully and at once understand what is good behavior in a judge and if he acts contrary it would be misbehavior.” Well, that’s simple; what’s the opposite of good behavior? Bad behavior. He says we all know that. Good behavior is really apparent; we know what that is. If he doesn’t have good behavior it
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