1801 Examination 13 · Founding Made Plain

1THE EXAMINATION.

2Number XIII.

3[New York, February 27, 1802]

4The advocates

5 of the power of Congress

6 to abolish the Judges,

7 endeavor to deduce

8 a presumption of intention

9 favorable to their doctrine,

10 from this argument.

11The provision concerning the tenure

12 of office

13 (say they)

14 ought to be viewed

15 as a restraint

16 upon the Executive Department,

17 because, to this department

18 belongs the power of removal;

19 in like manner

20 as the provision

21 concerning the diminution

22 of compensation,

23 ought to be regarded

24 as a restraint

25 upon the legislative department,

26 because, to this department

27 belongs the power

28 of regulating compensations.

29The different members of the clause

30 ought to be taken distributively,

31 in conformity with the distribution

32 of power

33 to the respective departments.

34This is certainly

35 the most specious of the arguments

36 which have been used

37 on that side.

38It has received

39 several pertinent and forcible answers.

40But it is believed

41 to be susceptible of one

42 still more direct and satisfactory;

43 which is not recollected

44 to have been yet given.

45If, in the theory of the Constitution,

46 there was but one way

47 of defeating the tenure of office,

48 and that exclusively appertaining

49 to the executive authority,

50 it would be a natural and correct inference

51 that this authority was solely contemplated,

52 in a constitutional provision

53 upon the subject.

54But the fact is clearly otherwise.

55There are two modes

56 known to the Constitution

57 in which the tenure of office

58 may be affected—

59 one, the abolition of the office;

60 the other, the removal of the officer.

61The first is a legislative act,

62 and operates

63 by removing the office from the person—

64 the last is an executive act,

65 and operates

66 by removing the person from the office.

67Both equally cause

68 the tenure, enjoyment,

69 or holding of the office

70 to cease.

71This being the case,

72 the inference which has been drawn,

73 fails.

74There is no ground for the presumption,

75 that the Constitution,

76 in establishing the tenure of an office,

77 had an exclusive eye

78 to one only of the two modes

79 in which it might be effected.

80The more rational supposition is,

81 that it intended to reach

82 and exclude both;

83 because, this alone can fulfil

84 the purpose

85 which it appears to have in view:

86 and it ought neither to be understood

87 to aim at less

88 than its language imports,

89 nor to employ inadequate means

90 for accomplishing the end

91 which it professes.

92Or, the better to elucidate the idea,

93 by placing it in another form,

94 it may be said,

95 that, since in the nature of things

96 the legislative,

97 equally with the executive organ,

98 may by different modes of action

99 affect the tenure of office;

100 when the Constitution undertakes

101 to prescribe

102 what that tenure shall be,

103 it ought to be presumed to intend

104 to guard that

105 which shall have been prescribed,

106 against the interference

107 of either department.

108In an instrument,

109 abounding with examples

110 of restrictions

111 on the legislative discretion,

112 there is no difficulty in supposing

113 that one was intended,

114 in every case

115 in which it may be fairly inferred,

116 either from the words used,

117 or from the object to be effected.

118While the reason which has been stated,

119 refers the provision

120 respecting the tenure

121 of judicial officers

122 as well to the executive

123 as to the Legislative Department,

124 were it necessary to examine

125 to which, if to either of them,

126 it ought to be deemed

127 most appropriate,

128 there could be no difficulty

129 in selecting the latter,

130 rather than the former.

131The tenure of an office

132 is one of its essential qualities.

133A provision, therefore,

134 which is destined

135 to prescribe or define this quality,

136 may be supposed

137 to have a more peculiar reference

138 to that Department,

139 which is empowered

140 to constitute the office;

141 either as directory to it,

142 in the exercise of its power,

143 or as fixing what otherwise

144 would be left to its discretion.

145It is constantly to be recollected,

146 that the terms of the provision

147 do not look particularly

148 to either Department.

149They are general,

150 "the judges shall hold their offices

151 during good behavior."

152'Tis not from the terms, therefore,

153 that an exclusive applicability

154 to the executive organ

155 can be inferred.

156On the contrary,

157 they must be narrowed,

158 to give them only this effect.

159It is different

160 as to the provision

161 concerning compensations.

162Though equally general in the terms,

163 this can have no relation

164 but to the Legislative Department;

165 because, as before observed,

166 that department alone

167 would have had power

168 to diminish the compensations.

169But this reason

170 for confining that provision

171 to one department,

172 namely, the power

173 of affecting the compensations,

174 so far from dictating

175 a similar appropriation

176 of the other provision,

177 looks a different way,

178 and requires by analogy

179 that the latter should be applied

180 to both the departments,

181 each having a power

182 of affecting the tenure of office,

183 in a way peculiar to itself.

184Nor can it be too often repeated,

185 because it is a consideration

186 of great force,

187 that the design,

188 so conspicuous

189 in the former of these two provisions,

190 to secure the independence

191 of the judges

192 against legislative influence,

193 is a powerful reason

194 for understanding the latter

195 in a sense calculated

196 to advance the same important end,

197 rather than in one

198 which must entirely frustrate it.

199A rule of constitutional law

200 opposed to our construction,

201 is attempted to be derived,

202 from the maxim,

203 that the power of legislation

204 is always equal;

205 and that a preceding

206 can never bind or control

207 a succeeding legislature,

208 by its acts,

209 which therefore must always be liable

210 to repeal at the discretion

211 of the successor.

212The misapplication,

213 or too extensive application

214 of general maxims or propositions,

215 true in their genuine sense,

216 is one of the most common

217 and fruitful sources

218 of false reasoning.

219This is strongly exemplified

220 in the present instance.

221The maxim relied upon,

222 can mean nothing more, than,

223 that as to all those matters

224 which a preceding legislature

225 was free to establish and revoke,

226 a succeeding legislature

227 will be equally free.

228The latter may do

229 what the former could have done,

230 or it may undo

231 what the former could have undone.

232But unless it can be maintained,

233 that the power of ordinary legislation

234 is in itself illimitable,

235 incontrollable,

236 incapable of being bound

237 either by its own acts,

238 or by the injunctions or prohibitions

239 of a Constitution,

240 it will follow,

241 that the body invested with that power,

242 may bind itself,

243 and may bind its successor;

244 so that neither itself

245 nor its successor can, of right,

246 revoke acts

247 which may have been once done.

248To say

249 that a legislature may bind itself,

250 but not its successor,

251 is to affirm

252 that the latter has not merely

253 an equal, but a greater power

254 than the former,

255 else it could not do

256 what the former was unable to do.

257Equality of power only

258 will not suffice for the argument.

259On the other hand,

260 to affirm

261 that a legislature cannot bind itself,

262 is to assert,

263 that there can be no valid pledge

264 of the public faith,

265 that no right can be vested

266 in an individual

267 or collection of individuals,

268 whether of property,

269 or of any other description,

270 which may not be resumed

271 at pleasure.

272Without doubt,

273 a legislature binds itself,

274 by all those acts

275 which engage the public faith;

276 which confer on individuals

277 permanent rights,

278 either gratuitously

279 or for valuable consideration;

280 and in all these instances

281 a succeeding one is not less bound.

282As to a right

283 which may have been conferred

284 by an express provision

285 of the Constitution

286 defining the condition

287 of the enjoyment;

288 or as to an institution or matter

289 in its nature permanent,

290 which the Constitution

291 may have confided

292 to an act of the legislature;

293 its authority terminates

294 with the act

295 that vests the right

296 or makes the establishment.

297A case of the first sort

298 is exemplified

299 in the office of a judge;

300 of the last,

301 in the creation of a new state,

302 which has been very pertinently mentioned

303 as a decisive instance

304 of power in a legislature,

305 to do a thing

306 which being done is irrevocable.

307But whatever may be the latitude

308 we assign to the power of a legislature

309 over the acts of a predecessor,

310 it is nothing to the purpose,

311 so long as it shall be admitted

312 that the Constitution

313 may bind and control

314 the legislature.

315With this admission,

316 the simple inquiry must always be—

317 has or has not the Constitution,

318 in the particular instance,

319 bound the legislature?

320And the solution must be sought

321 in the language, nature, and end

322 of the provision.

323If these warrant the conclusion,

324 that the legislature was intended

325 to be bound,

326 it is perfect nonsense to reply,

327 that this cannot be so

328 because a legislature

329 cannot bind itself

330 by its own acts;

331 or because the power

332 of one legislature

333 is equal to that of another.

334What signifies this proposition,

335 if the Constitution

336 has power to bind the legislature,

337 and has in fact bound it

338 in a given case?

339Can a general rule

340 disprove the fact of an exception

341 which it is admitted may exist?

342If so, the argument is always ready,

343 and equally valid

344 to disprove any limitation

345 of the legislative discretion.

346Compelled, as they must be,

347 to desist from the use of the argument

348 in the extensive sense

349 in which it has been employed,

350 if its inventors should content themselves

351 with saying, that at least,

352 the principle adduced by them

353 ought to have so much of force,

354 as to make the exception to it

355 depend on an express provision—

356 it may be answered,

357 that in the case under consideration,

358 there is an express provision.

359No language can be more precise

360 or peremptory than this,

361 "The judges,

362 both of the Supreme

363 and Inferior Courts,

364 shall hold their offices

365 during good behavior."

366If this be not an express provision,

367 it is impossible to devise one.

368But the position,

369 that an express provision

370 is necessary to form an exception,

371 is itself unfounded.

372Wherever it is clear,

373 whether by a circumstance expressed,

374 or by one so implied

375 as to leave no reasonable doubt,

376 that a limitation

377 of the authority of the legislature

378 was designed by the Constitution,

379 the intention ought to prevail.

380A very strong confirmation

381 of the true intent of the provision

382 respecting the tenure

383 of Judicial office,

384 results from an argument by analogy.

385In each of the articles

386 which establishes any branch

387 of the government,

388 the duration of office

389 is a prominent feature.

390Two years

391 for the House of Representatives,

392 six for the Senate,

393 four for the President

394 and Vice-President,

395 are the respective terms of duration;

396 and for the Judges,

397 the term of good behavior

398 is allotted.

399It is presumable,

400 that each was established

401 in the same spirit,

402 as a point material

403 in the organization of the government

404 and of a nature

405 to be properly fundamental.

406It will not be pretended

407 that the duration of office

408 prescribed as to any other department,

409 is within the reach

410 of legislative discretion.

411And why shall that of Judicial officers

412 form an exception?

413Why shall the Constitution

414 be supposed less tenacious

415 of securing to this organ

416 of the sovereign power

417 a fixed duration

418 than to any other?

419If there be any thing

420 which ought to be supposed

421 to be peculiarly excepted

422 out of the power

423 of the ordinary Legislature,

424 it is emphatically

425 the organization

426 of the several constituent departments

427 of the government;

428 which in our system

429 are the Legislative, Executive,

430 and Judiciary.

431Reasons of the most cogent nature

432 recommend,

433 that the stability and independence

434 of the last of these three branches,

435 should be guarded

436 with particular circumspection

437 and care.

438Lucius Crassus.

439New-York Evening Post, February 27, 1802.