[New York, February 27, 1802]
The advocates of the power of Congress to abolish the Judges, endeavor to deduce a presumption of intention favorable to their doctrine, from this argument—The provision concerning the tenure of office (say they) ought to be viewed as a restraint upon the Executive Department, because, to this Department belongs the power of removal; in like manner as the provision concerning the diminution of compensations ought to be regarded as a restraint upon the Legislative Department, because, to this Department belongs the power of regulating compensations: The different members of the clause ought to be taken distributively in conformity with the distribution of power to the respective Departments.
This is certainly the most specious of the arguments which have been used on that side. It has received several pertinent and forcible answers. But it is believed to be susceptible of one still more direct and satisfactory; which is not recollected to have been yet given.
If, in the theory of the Constitution, there was but one way of defeating the tenure of office, and that exclusively appertaining to the Executive Authority, it would be a natural and correct inference that this authority was solely contemplated in a constitutional provision upon the subject. But the fact is clearly otherwise. There are two modes known to the Constitution, in which the tenure of office may be affected—one the abolition of the office; the other the removal of the officer. The first is a legislative act, and operates by removing the office from the person—the last is an Executive act and operates by removing the person from the office. Both equally cause the tenure, enjoyment, or holding of the office to cease.
This being the case, the inference which has been drawn, fails. There is no ground for the presumption, that the Constitution, in establishing the tenure of an office, had an exclusive eye to one only of the two modes in which it might be affected. The more rational supposition is, that it intended to reach and exclude both; because, this alone can fulfil the purpose which it appears to have in view: And it ought neither to be understood to aim at less than its language imports, nor to employ inadequate means for accomplishing the end which it professes. Or, the better to elucidate the idea by placing it in another form, it may be said, that since in the nature of things the Legislative, equally with the Executive organ, may by different modes of action affect the tenure of office; when the Constitution undertakes to prescribe what that tenure shall be, it ought to be presumed to intend to guard that which shall have been prescribed against the interference of either department.
In an instrument abounding with examples of restrictions on the Legislative discretion, there is no difficulty in supposing that one was intended in every case in which it may be fairly inferred, either from the words used, or from the object to be effected.
While the reason which has been stated, refers the provision respecting the tenure of judicial office as well to the Executive as to the Legislative department, were it necessary to examine to which, if to either of them, it ought to be deemed most appropriate, there could be no difficulty in selecting the latter, rather than the former. The tenure of an office is one of its essential qualities. A provision, therefore, which is destined to prescribe or define this quality, may be supposed to have a more peculiar reference to that department which is empowered to constitute the office; either as directory to it in the exercise of its power, or as fixing what otherwise would be left to its discretion.
It is constantly to be recollected that the terms of the provision do not look particularly to either department. They are general, “The Judges shall hold their offices during good behavior.” ’Tis not from the terms, therefore, that an exclusive applicability to the Executive Organ can be inferred. On the contrary, they must be narrowed to give them only this effect.
It is different as to the provision concerning compensations. Though equally general in the terms, this can have no relation but to the Legislative department; because, as before observed, that Department alone would have had power to diminish the compensations. But this reason for confining that provision to one Department, namely, the power of affecting the compensations, so far from dictating a similar appropriation of the other provision, looks a different way, and requires by analogy that the latter should be applied to both the Departments, each having a power of affecting the tenure of office, in a way peculiar to itself. Nor can it be too often repeated, because it is a consideration of great force, that the design so conspicuous in the former of those two provisions, to secure the Independence of the Judges against Legislative influence, is a powerful reason for understanding the latter in a sense calculated to advance the same important end, rather than in one which must intirely frustrate it.
A rule of constitutional law opposed to our construction, is attempted to be derived, from the maxim, that the power of legislation is always equal; and that a preceding can never bind or controul a succeeding legislature by its acts, which therefore must always be liable to repeal at the discretion of the successor.
The misapplication, or too extensive application of general maxims or propositions, true in their genuine sense, is one of the most common and fruitful sources of false reasoning. This is strongly exemplified in the present instance. The maxim relied upon, can mean nothing more, than, that as to all those matters which a preceding legislature was free to establish and revoke, a succeeding legislature will be equally free. The latter may do what the former could have done, or it may undo what the former could have undone. But unless it can be maintained, that the power of ordinary legislation is in itself illimitable, incontroulable, incapable of being bound either by its own acts, or by the injunctions or prohibitions of a constitution, it will follow, that the body invested with that power, may bind itself, and may bind its successor; so that neither itself nor its successor can of right revoke acts which may have been once done. To say that a legislature may bind itself, but not its successor, is to affirm, that the latter has not merely an equal, but a greater power than the former, else it could not do what the former was unable to do. Equality of power only will not suffice for the argument. On the other hand, to affirm that a legislature cannot bind itself, is to assert, that there can be no valid pledge of the public faith, that no right can be vested in an individual or collection of individuals, whether of property or of any other description, which may not be resumed at pleasure.
Without doubt a legislature binds itself by all those acts which engage the public faith; which confer on individuals permanent rights; either gratuitously or for valuable consideration; and in all these instances a succeeding one is not less bound. As to a right which may have been conferred by an express provision of the Constitution defining the condition of the enjoyment; or as to an institution or matter in its nature permanent, which the Constitution may have confided to an act of the legislature; its authority terminates with the act that vests the right or makes the establishment. A case, of the first sort, is exemplified in the office of a Judge; of the last, in the creation of a new state, which has been very pertinently mentioned as a decisive instance of power in a legislature to do a thing which being done is irrevocable.
But whatever may be the latitude we assign to the power of a legislature over the acts of a predecessor, it is nothing to the purpose, so long as it shall be admitted that the constitution may bind and controul the legislature. With this admission, the simple inquiry must always be—has or has not the Constitution in the particular instance, bound the legislature? And the solution must be sought in the language, nature, and end of the provision. If these warrant the conclusion that the legislature was intended to be bound, it is perfect nonsense to reply that this cannot be so because a legislature cannot bind itself by its own acts; or because the power of one legislature is equal to that of another. What signifies this proposition, if the Constitution has power to bind the legislature, and has in fact bound it in a given case? Can a general rule disprove the fact of an exception which it is admitted may exist? If so, the argument is always ready, and equally valid to disprove any limitation of the legislative discretion.
Compelled, as they must be, to desist from the use of the argument in the extensive sense in which it has been employed, if its inventors should content themselves with saying, that at least, the principle adduced by them ought to have so much of force, as to make the exception to it depend on an express provision—it may be answered, that in the case under consideration, there is an express provision. No language can be more precise or peremptory than this, “The Judges, both of the Supreme and Inferior Courts, shall hold their offices during good behaviour.” If this be not an express provision, it is impossible to devise one. But the position, that an express provision is necessary to form an exception, is itself unfounded. Wherever it is clear, whether by a circumstance expressed, or by one so implied as to leave no reasonable doubt, that a limitation of the authority of the legislature was designed by the Constitution, the intention ought to prevail.
A very strong confirmation of the true intent of the provision respecting the tenure of Judicial office results from an argument by analogy. In each of the articles which establishes any branch of the government, the duration of office is a prominent feature. Two years for the House of Representatives, six for the Senate, four for the President and Vice President, are the respective terms of duration; and for the Judges the term of good behaviour is allotted. It is presumable that each was established in the same spirit, as a point material in the organization of the government and of a nature to be properly fundamental. It will not be pretended that the duration of office prescribed as to any other department, is within the reach of Legislative discretion. And why shall that of Judicial Officers form an exception? Why shall the Constitution be supposed less tenacious of securing to this organ of the sovereign power, a fixed duration than to any other? If there be any thing which ought to be supposed to be peculiarly excepted out of the power of the ordinary Legislature, it is emphatically the organization of the several constituent departments of the Government, which in our system are the Legislative, Executive and Judiciary. Reasons of the most cogent nature recommend that the stability and independence of the last of these three branches should be guarded with particular circumspection and care.
New-York Evening Post, February 27, 1802.
1. For background to this document, see the introductory note to “The Examination Number I,” December 17, 1801. See also “The Examination Number V,” December 29, 1801; “The Examination Number VI,” January 2, 1802; “Remarks on the Repeal of the Judiciary Act,” February 11, 1802, note 1; “The Examination Number XII,” February 23, 1802.