The Founders' intent for impeachment was to protect the fundamental principle
of “the consent of the governed.” The Constitution carries no title
but “We the People,” and impeachment removes from office those officials
who ignore that standard. (Recall that the Constitution does not guarantee a
federal judge his position for life, but only for the duration of “good
behavior.” Art. III, Sec. 1)
For this reason impeachment was used whenever judges disregarded public interests,
affronted the will of the people, or introduced arbitrary power by seizing the
role of policy-maker. Previous generations used this tool far more frequently
than today's generation; and because the grounds for impeachment were deliberately
kept broad, articles of impeachment have described everything from drunkenness
and profanity to judicial high-handedness and bribery as reasons for removal
from the bench. (Sixty-one federal judges or Supreme Court Justices have been
investigated for impeachment, of whom thirteen have been impeached and seven
Today's judiciary, not having experienced any serious threat of impeachment
as judges in earlier generations, repeatedly flaunts its contempt for the will
of the people. It recently has overturned direct elections in Washington, New
York, California, Arkansas, Texas, Missouri, etc., simply because it preferred
a different outcome. This is not to suggest that the results of all citizen
elections are final and infallible, for it is the duty of the Court to protect
the Constitution. However, the above elections violated at most the judiciary's
ideological leanings rather than any manifest provision of the Constitution
(e.g., English as a State's official language, ending government assistance
for illegal immigrants, enacting term-limits, prohibiting physician-assisted
Examples of Judicial Abuses
While most are aware of the 9th Circuit's recent decision that saying “under
God” in the Pledge of Allegiance threatens our American form of government,
there are numerous additional examples, some staggeringly unbelievable. For
example, in Jane Doe v. Santa Fe, a federal judge ruled that graduation prayers
must not include any mention of “Jesus” or other “specific deities”
and that any student offering such a prayer would face immediate arrest and
up to six months in jail. The judge threatened “violators” by saying
they would wish they “had died as a child” once his court finished
In a Texas county where conservatives narrowly won multiple seats in an election,
a federal judge reversed that outcome by arbitrarily throwing out the 800 votes
cast by U.S. military personnel, saying they had no right to vote in local elections.
A federal judge in Nashville reviews the verdict of any jury in Tennessee that
awards the death penalty. This judge has openly declared his personal opposition
to the death penalty and has set aside every jury decision on this issue, despite
the Constitution's explicit language to the contrary. The judge even allows
nine years to pass, on average, before overturning the jury's sentence, thus
disregarding the Constitution's guarantee to a speedy trial.
After citizens in a statewide election voted down a proposed tax-increase in
Missouri, a federal judge, in direct violation of Article I of the Constitution,
unilaterally set aside the election results and instead decreed that the tax
be levied in order to finance his own personal plan for education in the State.
Interestingly, this judge's plan (which funded the “Taj Majal” of
public education) proved to be a dismal failure - at the continuing economic
expense of the entire State.
There are many other examples; today's judiciary is now so arrogant that the
Supreme Court's own Justices have described it as “a super board of education
for every school district in the nation,” as amateur psychologists on a
“psycho-journey,” and as “a national theology board.”
The Supreme Court versus Congress
Even though the Constitution gave the lawmaking powers to the Congress, courts
have become the predominant policy making body in the nation. In fact, on public
tours of the Supreme Court, one often hears the ridiculous claim that “this
is the building from which all the laws in the land emanate.” The Supreme
Court, fully believing its own propaganda, regularly strikes down or rewrites
the laws of Congress to conform to its own predilections and edicts.
For example, in 1993, Congress passed the Religious Freedom Restoration Act
(RFRA) to correct an earlier Supreme Court decision that weakened a long-standing
First Amendment protection for religious groups. That Congressional act reinstituted
protection declaring that a government entity must not interfere with a religious
body unless it had “a compelling state interest” for doing so. When
a Catholic church in Boerne, Texas, sought to accommodate its burgeoning membership
but was denied a building permit to expand its facilities, the church invoked
relief under RFRA, claiming the city had no “compelling state interest”
in denying the church expansion. The Court ruled otherwise, striking down Congress'
attempt to protect religious bodies from government intrusion. While most decried
this decision for weakening the rights of religious bodies, there was a far
greater question at stake.
Congress invoked Section 5 of the Fourteenth Amendment of the Constitution
in passing RFRA to protect religious freedoms from further governmental encroachment.
Yet even though the Congress had acted on the power explicitly given it in the
Constitution, the Court struck down the law, refusing to be corrected by Congress
and warning that Congress should not attempt to correct a Court ruling. Significantly,
Congress cited the Constitution as its authority for passing RFRA, but the Court
did not cite the Constitution as its authority for striking RFRA down. The Court
instead pointed to its own previous decisions, thus elevating its rulings higher
than the Constitution itself. As it explained, “Any suggestion that Congress
has a substantive, non-remedial power under the Fourteenth Amendment is not
supported by our case law.” The Court then rebuked Congress, warning that
its judicial edicts must be treated “with the respect due them.” In
short, we the Court demand that you the Congress adhere to our opinions regardless
of what the Constitution says.
Obviously, the Supreme Court considers both itself and its decisions supreme
over Congress. However, the Constitution disagrees - it deliberately empowers
Congress with greater power. For example, the Constitution gives Congress the
authority to set the salaries for judges, determine the size of the Judiciary,
establish the scope of the Judiciary's jurisdiction and the types of cases which
come before it. Furthermore, judges cannot serve without the approval of Congress,
and Congress may remove judges with whom it is dissatisfied. These are just
some of the “constitutional arms” for Congress' “powers of self-defense”
(Federalist 73, Alexander Hamilton).
The Constitution clearly places many of the operations of the Judiciary under
the oversight of Congress - a power not granted reciprocally to the Judiciary.
This is made clear in the Federalist Papers (described by James Madison
as “the most authentic exposition of the heart of the federal Constitution”),
which confirm that subjugating the Judiciary to Congress was deliberate and
intentional. Federalist #51 declares:
The legislative authority necessarily predominates.
Federalist #78 then proclaims:
The Judiciary is beyond comparison the weakest of the three departments of
Furthermore, Federalist #49 declares that Congress - not the Court -
is “the confidential guardians of [the people's] rights and liberties.”
Why? Because the Legislature - not the unelected judiciary - is closest to the
people and most responsive to them. In fact, the Court's own history proves
that it is not a proficient guardian of the people's rights. For example, after
the Civil War, Congress passed civil rights laws forbidding segregation, but
the Court struck down these laws and instead instituted “separate but equal”
in Plessey v. Ferguson. (While the Court eventually ended this racial
segregation in Brown v. Board of Education, that decision was merely
the Court's reversal of its own segregation standard previously established
Moreover, had it been up to the Court, slavery would have never ended: in 1857,
the Court declared it unconstitutional for the other branches to end slavery
or to free slaves. Fortunately, Congress ignored that decision by declaring
freedom for slaves in 1862 and President Lincoln also ignored that decision
by issuing the “Emancipation Proclamation” in 1863. All substantive
progress in civil rights after the Civil War was accomplished only after Congress
used Article III, Section 2 of the Constitution to remove Reconstruction
issues from the Court's reach. Indeed, history demonstrates that the Court is
less than a faithful guardian of the people's rights, violating the people's
liberties as often as it protects them. As Thomas Jefferson pointed out:
Our judges are as honest as other men and not more so. They have, with others,
the same passions for party, for power, and the privilege of their corps.
. . . and their power the more dangerous as they are in office for life and
not responsible, as the other functionaries are, to the elective control.
Today, the Court claims that it is the only body capable of interpreting the
Constitution - that Congress is incapable of determining constitutionality.
However, the Founding Fathers vehemently disagreed. For example, James Madison
[T]he meaning of the Constitution may as well be ascertained by the Legislative
as by the Judicial authority.
Constitutional Convention delegate Luther Martin similarly attested:
A knowledge of mankind and of legislative affairs cannot be presumed to belong
in a higher degree to the Judges than to the Legislature.
The Founders consistently opposed the Court being the final word on constitutionality.
For example, Thomas Jefferson declared:
[T]o consider the judges as the ultimate arbiters of all constitutional
questions [is] a very dangerous doctrine indeed, and one which would place
us under the despotism of an oligarchy. . . . The Constitution has erected
no such single tribunal.
He further explained that if the Court was left unchecked:
The Constitution . . . [would be] a mere thing of wax in the hands of the
judiciary which they may twist and shape into any form they please.
Allowing the Court to enlarge its own sphere of power beyond what the Constitution
authorizes, permitting the Court to usurp the powers of Congress, and tolerating
the Courts' disregard of constitutional separation of powers moves America ever
further from being a representative republic and ever closer toward the oligarchy
against which Jefferson warned. The Court must be resisted in these attempts.
Impeachment: The Founders' Solution
As noted earlier, judges in previous generations who usurped powers from Congress
or the people faced impeachment. But today's critics claim that the use of impeachment
would either make the judiciary a “political” branch (as if it were
not already a political branch) or that it would violate the “independence
of the judiciary.” Yet, as Thomas Jefferson so accurately cautioned,
It should be remembered as an axiom of eternal truth in politics that whatever
power . . . is independent is absolute also. . . . Independence can be trusted
nowhere but with the people in mass.
No judge should ever be so independent that he is unaccountable to the Congress,
and thereby the people. As Justice James Iredell (placed on the Court by President
George Washington) so clearly explained:
Every government requires it [impeachment]. Every man ought to be amenable
for his conduct.
Iredell further noted that some officials will behave themselves only under
“the very terror of punishment” that impeachment provides. Recent
events suggest he was right.
In 1996, six members of the Supreme Court voted to overturn the Colorado election
forbidding special (rather than just equal) rights for homosexuals. Following
that flagrant display of contempt for the will of Colorado voters, there was
a national call for the impeachment of those six Justices. After this clamor
for their removal, those same six Justices suddenly became ardent defenders
of the people's elections and in a subsequent decision unexpectedly and unanimously
chastised a lower court that had overturned a statewide election in Arizona.
(Interestingly, Thomas Jefferson on multiple occasions called impeachment a
“scarecrow” - something used to frighten predators - and the threat
of impeachment certainly had that effect on the Supreme Court.)
Similarly, after a federal judge overturned a binding referendum by the voters
of California (“Proposition 209”), national leaders called for the
impeachment of that judge. Later, the 9th Circuit ordered the results of the
election reinstated and criticized that judge for ignoring the will of the people.
Yet, this same 9th Circuit Court had itself shortly before overturned at least
three similar elections. Why the flip-flop? The “scarecrow” had been
forcefully raised by Congress to make judges accountable for their decisions
by returning to the original constitutional uses of impeachment.
It is true that impeachment is a cumbersome process, and achieving a conviction
is difficult. However, on most occasions, just the threat of impeachment produces
results. In fact, there are several examples of federal judges correcting their
own decisions after hearing Congressional calls for their impeachment; and an
actual impeachment sends an even more powerful message to all other wayward
Although Congress is ultimately responsible for the discipline of judges, far
too many of our Congressmen (like far too many of our citizens) have no understanding
of the proper use of impeachment. However, a wise political axiom declares that
“Congress sees the light when it feels the heat,” and this is especially
true on this issue. As citizens, we need to educate ourselves on the proper
use of judicial impeachment, and then we need to educate our Representatives,
reminding them of the need for judicial reform and alerting them to those judges
showing a pattern of abuse. The time for encouraging judicial accountability
is once again ripe. This is a golden opportunity for citizens to weigh in and
make a difference.
Copyright © 2002 David Barton, WallBuilders
(An excellent tool for educating yourself and your Congressional
representative is the book Restraining Judicial Activisim . This work documents both the Founders
writings on this issue and how impeachment was used in America in previous generations.
Get a copy for yourself and an extra copy for your Representative and Senators!)