When Republicers Attack

While reading an article about the origins of our Independent Judiciary, I immediately thought about Republican attacks on our courts. Particularly Alberto Gonzales recent claim that our courts aren't qualified to rule on cases involving national security policy. The article showed me that the Right-wingers made-up arguments about the supposed limits of judicial review are conveniently leap-frogging backwards over the real ideas of the Founding Fathers to the less evolved writings of Montesquieu.

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... John Adams was the American Founding’s most sophisticated political theorist and when he modified Montesquieu’s conception of the separation of powers by developing what can be fairly termed the political architecture of an independent judiciary, he articulated an idea that helped make judicial review possible. In fact, Adams’s contribution to political theory is arguably as significant as that of the French baron whose work inspired him and the other American Founders.

It is well known that Montesquieu’s seminal contribution to the history of ideas is that political power should be divided among the legislative, executive, and judicial branches of government so as to ensure the people’s liberty. What is largely overlooked, however, is that Montesquieu’s characterization of the judicial power differs dramatically from the American view: the preferred scheme of checks and balances Montesquieu describes in The Spirit of the Laws is not the three famous powers but the established English scheme of king, lords, and commons. “Among the three powers of which we have spoken,” he writes, “that of judging is in some fashion, null.” He maintains that “only two” powers truly matter—the legislative and the executive—and that the “part of the legislative body composed of the nobles is quite appropriate” for checking legislative abuse.

Likewise overlooked is that Montesquieu associates the judicial power with petit juries, rather than with a judge in a robe. “In England,” Montesquieu proclaims in a much-neglected passage, “the jury decides whether the accused is guilty or not of the deed brought before it; and, if he is declared guilty, the judge pronounces the penalty imposed by law for this deed; and he needs only his eyes for that.”

It would be left to John Adams to suggest that judges, and not simply temporary juries, need to be independent from the executive and legislative branches of government. Adams had been writing about the need for an independent judiciary since at least January and February of 1773, when he engaged in a series of exchanges on the matter in the Boston press with William Brattle. Brattle, a Tory, insisted that the proposed payment of judicial salaries by the Crown should not concern the people of Massachusetts Bay, as the judges of the colony’s superior court, like their brethren in England, enjoyed life tenure so long as they behaved well. Adams, after conducting an extensive historical review of the subject, countered that Brattle was wrong to claim that judges in England, let alone in America, held their offices during good behavior. Consequently, the proposed control by the Crown over judicial salaries was perceived by Adams as an additional threat to the independence of the Massachusetts judiciary.

Adams revisited the matter of an independent judiciary in Thoughts on Government, published in 1776. The pamphlet—a clarion call for the separation of powers written in response to Thomas Paine’s recommendation in Common Sense that all government power be vested in a unicameral legislature—explains in no uncertain terms how important an independent judiciary is to any form of government dedicated to the preservation of liberty. Adams writes,

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.

Adams argues in his pamphlet for more than merely making the judiciary a separate branch of government. He also calls for stable judicial compensation and tenure so long as judges maintain good behavior: “they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Judges who misuse their offices should be impeached by the “house of representatives . . . before the governor and council” and, “if convicted, should be removed.”

The Federal Constitution of 1787 excluded the executive from participating in the impeachment process, but otherwise contained principles identical to Adams’s proposal. As David McCullough put it in his biography of Adams, “[l]ittle that Adams ever wrote had such effect as his Thoughts on Government.”

Judicial review fits into the political theory of an independent judiciary in at least two ways. First, judicial review is a core component of the Constitution’s system of checks and balances, a system in which each branch of the federal government is endowed with, in the words of The Federalist No. 48, “a constitutional control over the others.” The President has, among other checks, a veto over congressional bills and the power to nominate federal judges. Congress has, among other checks, the power to override presidential vetoes and to control the size and jurisdiction of the federal courts, as well as the power to impeach all federal officials. Without the power of judicial review, what check—what “constitutional control”—would the federal judiciary have on the President or Congress? The answer is none. As a consequence, judicial review is an inevitable component of the Constitution’s commitment to checks and balances.

Judicial review also fits into the political theory of an independent judiciary in another, equally straightforward, fashion: judicial review is the ultimate expression of judicial independence, because without judicial independence no court could safely void an act of a coordinate political branch. Bluntly stated, the risk to a judge who exercises judicial review when he or she is not independent of the executive and the legislature is either removal from the bench or a reduction in salary. John Adams knew this, and so did the Framers who met in Philadelphia during the summer of 1787 when they wrote Adams’s theory of judicial independence into Article III of the Constitution. .... (source)