James Madison Papers

To James Madison from “A Plain Man,” [8 March] 1802

From “A Plain Man”

[8 March 1802]


The system of the administration generally, but especially that part of it which respects the courts, is believed to be so hostile to the Union, and so opposed to your former opinions on the subject, that I cannot resist the inclination I feel, to ask your attention to a few observations, on a point so universally interesting.

The friends of the constitution, who consider that instrument as a law limiting the powers of the legislature, have maintained, with unanswered and unanswerable force of argument, that the general clause which says, ‘the judges both of the supreme and inferior courts shall hold their offices during good behavior’;1 is obligatory on the legislature. That being descriptive of the tenure of office, and not restrictive of the power of a particular department; being intended to preserve purity in the administration of justice, by securing the independence of those who administer it, and not merely to prevent a particular department, from the exercise of a particular power it would otherwise possess; the clause forms a barrier round the judiciary, which neither the legislature nor the executive can rightfully overleap.

In opposition (I will not say in answer) to this reasoning, the ministerial band contend.

1st. That if the legislature violate the constitution, yet the act is obligatory, not only on individuals, but on the courts likewise, and that judges sworn to support the constitution, must give to such acts the effect of laws legitimately enacted, and be governed by them in opposition to the instrument which its friends consider as the sacred source from whence all the powers of every department are derived.

2d. That the words ‘the judges both of the supreme and inferior courts shall hold their offices during good behavior,’ are intended to restrain the executive and not the legislative power.

With respect to the first argument, I shall not stop to demonstrate its direct tendency to prostrate the constitution at the feet of the legislature, and to introduce, in all its force, the principle of Parliamentary omnipotence, a principle heretofore so much reprobated, and which it is the great object of a written constitution to resist. Nor shall I employ myself in marking to these gentlemen, the palpable contradiction of maintaining, that the judges are bound by a law violating the constitution, and yet that the juries are at liberty to deny its force. It would be unnecessary to dwell on these contradictions, because inconsistency must be habitual with men who believe all means may be used to effect the end desired, and because the motive for this inconsistency is too apparent to escape the slightest observer—They have already adopted means to select their jurors, they are only adopting means to pick their judges! But I will ask you, sir, can this be your opinion? Have you so entirely surrendered your judgment? Have you put yourself so completely in the hands of your party, or its chief; have you so totally effaced from your mind all its former correct course of reasoning; as to embrace this new doctrine?2

If this be possible, it would be in vain to urge you to reflection; it would be time misspent to press you to summon up your powers, and to make one manly, one patriotic effort, to relieve your country from a principle, which, in a state of independence you would believe to be more fruitful of evil, than any which, if I may refer to ancient allegory, ever escaped from the box of Pandora.

Unwilling to take up this opinion of you, I shall pass to the second proposition.

It maintains that the clause of the constitution which ordains that ‘the judges both of the supreme and inferior courts shall hold their offices during good behavior,’ is intended to secure their continuance in office against an executive, and not against a legislative act.

In vain has it been urged that the terms are used without limitation, without being applied to any particular department, and consequently that they must be so understood. That there is not a syllable in the constitution restraining their operation merely to the executive, nor a syllable which gives to the legislature the power of removal. That to contend for this application, is, capriciously, to set up a mere arbitrary distinction, which prostrates every principle of sound construction, and destroys the use of language, by taking from words their plain signification. The ministerialists insist on so understanding the constitution because they will so understand it, and they, unfortunately for America, constitute a majority.

Let me then ask you sir, who must possess some influence with your party, to check for a moment the mad career you are running, for one instant to resume your former self, and think systematically and virtuously.

The words of the constitution, if obligatory on the legislature as well as the executive, must be admitted to protect the judges as well against a legislative, as executive removal from office. There being in the constitution no words to counteract them, it can only be by mere implication, that a power over the continuance of judges in office is to be attributed to the legislature.

Will you sir, admit, that express words of the constitution are to be overruled by implication? Implication not founded on any words whatever—not on any specific grant of power which can by any possibility be construed to comprehend a control over the existence of the judicial department, but on the broad undefinable nature of legislative powers? Will you admit this construction to be made by the legislature itself, which, in making it, enlarges its own power? If the legislature may imply powers in itself, against the express words of the constitution, what are its limits and where are we to search for them? Is not the constitution itself a mockery, and are not the oaths, taken to support it, worse than a mockery.

But let us examine what the ministerialists term a reason in support of this till now unheard of construction.

They say that but for this restriction, the general power of removal from office given by the constitution, in all cases, to the executive, would have enabled that department to remove the judges, to prevent which this clause was inserted, declaring that they shall hold their offices during good behavior.

The truth of this proposition has been very properly denied—but let us for the sake of the argument admit and examine it. To a mind capable as yours has been of correct reasoning, this may not be time entirely thrown away.

What, let me ask you, is, in truth, the sum of this argument?

It amounts, if I understand it, to this. The words though general, could only be designed to check and limit a power given by the constitution, and therefore apply only to the executive, to whom alone the power of removal is given.

Reflect, sir, turn the subject in your own mind, and if it amounts to any thing more, say what that any thing is.

If this be its amount, is it possible for any man possessing a distinguishing mind, to hesitate one moment in pronouncing the argument conclusive against those who urge it?

If it be intended as a restraint on the power of removal given by the constitution, then the restriction being expressed without limitation, must apply to any or all the departments, to which the power designed to be restrained, is given. I ask you sir, if this be not the plain and inevitable conclusion from the words used and from the argument.

‘The judges shall hold their offices during good behavior.’ This say gentlemen is only to restrain the implied power of removal given in the constitution. Then, does it not restrain that power in any department implied to possess it? And can it be exercised by a department, to which the constitution neither gives it expressly nor by implication?

Let us suppose the implied powers of removing officers generally, to have been expressed, and then apply to them the restrictive clause of the constitution, as it is actually expressed.

They would stand thus. The legislative or executive may remove at pleasure all officers who shall be appointed, except the judges; but ‘the judges both of the supreme and inferior courts, shall hold their offices during good behavior.’

Or thus:

The executive alone shall possess the power of removing at pleasure all officers except the judges who ‘shall hold their offices during good behaviour.’

If the implication be conformable to the first statement; if under the constitution the power of removal may be exercised by either the legislative or executive, then the man would be thought insane himself, or to suppose those he addresses to be so; who, in any other times than these, would pronounce the restraining, not to be co-extensive with the empowering clause.

If the second statement be supposed to express what the constitution implies, then let me ask with what propriety can the legislature exercise in any form, the power of removal? If the power of removing from, like that of nominating to office, be exclusively in the executive, is it not usurpation in the legislature to claim it?

The restraining clause, accompanying and limiting the power of removal wherever it is to be found, restrains the exercise of that power wherever it may be placed, so far as respects the judges. If it be in the legislature then the legislature is forbidden to use it as to the judges; if it be not in the legislature, then to usurp it is tyranny.

Can the legislature exercise a power not given by the constitution? You, I am inclined to think, will admit that it cannot. The ministerial party, however disposed to sophisticate away the plain meaning of words, will not yet, in direct terms, aver that it can. If so, the power of removal from office must be given by the constitution, or it cannot exist. I call that given which is fairly to be implied from the nature, of powers expressly granted. If it be given either in express terms or by implication, then it is restrained so far as respects the judges, by the clause declaring that they shall hold their offices during good behavior. If it be not given to the legislature, but is exclusively bestowed on another department, so that the restriction on the power applies to that other department, then it is not less a violation of the constitution to usurp it.

Than this my mind is incapable of conceiving a clearer proposition.

If it be a power incidental to legislation, I answer that an incidental power cannot be stronger, or less subject to limitation, than one granted by express words; an express grant to the legislature of the general power of removal from office, would, it has been shown, be restrained by the clause declaring that power not to extend to the judges, who are to hold their offices during good behavior. Then an incidental power of removal must be restrained by the same clause.

The delusion of the moment must pass away. The Genius of America only sleeps. It cannot be dead. It will arouse itself, and shake off the thick veil of prejudice now cast over the public mind. When that shall happen, what sir, will be the opinion entertained of you, if it shall be believed that you were the advocate of the present system?

A Plain Man.

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