Posted on 04/03/2008 5:56:02 AM PDT by ZGuy
No, it's not silent. It states that they shall (mandatory) hold their offices during good behavior. This is very plainly a lifetime appointment. It's been considered a lifetime appointment since the Constitution was drafted, Hamilton in Federalist 78 explained that it was a lifetime appointment, and the Supreme Court has held, repeatedly, that it's a lifetime appointment. There's no debate here.
It can structure them with built-in tenure.
No, it can't. That would violate Article III. Again, Hamilton addresses this at length in Federalist 78.
It’s a pretty powerful argument to say that John Roberts disagrees with you.
I also think the text itself disagrees with you. It says “All cases...with such Exceptions, and under such Regulations as the Congress shall make.”
And by the way, Justice Story agrees with me; he's got a little better legacy than Justice Roberts at this point.
In regards to Congressional limitation of review, the Constitution does not just say “shall.” It says “shall...with exeptions..regulations that Congress shall make.”
Notice that “shall” in the case of Congress does not REQUIRE Congress to make exceptions.
Therefore, the framers did not always consider “shall” to be an absolute. It is ruled by its context.
You’re arguing that shall doesn’t mean shall?
The framers were all bright men. If your argument was the intention of the framers, why did they write it this way? Why didn’t they simply say that Congress may create a federal judiciary under such rules and regulations as it chooses? If your interpretation is correct, why isn’t its enumerated power under Article I sufficient? Why do we need Article III at all?
By the way, Article I says “All legislative powers shall be vested in a Congress of the United States.” Is it your contention that the legislative power is not absolutely vested? Do you believe that the President has the power to dissolve Congress, much like in a parliamentary system?
Article II says that the executive power shall be vested in a President. Do you believe that Congress could vest it an another person or not vest it at all?
Or does “shall” mean “shall” in Articles I and II but not in Article III?
Did I suggest that Federal Judges ought to be elected? I don't think I did, so your analogy is misplaced.
They know the law and they don't have to worry about losing their job because of an unpopular decision.
Did I suggest that a Federal Judge ought to be booted from office for an unpopular decision? I don't think I did.
I merely suggested that an appointment to the Federal Bench should not be a lifetime appointment and ought to be a non-renewable appointment limited to a fixed number of years. I would think 12 would be sufficient. I believe that the language of the Constitution would allow Congress to set a fixed tenure for a Federal judge. Now maybe the Supreme Court might disagree, but then I don't necessarily believe that the Supreme Court is the final arbiter of what the Constitution means.
I guess that makes me a heretic.
Based on what? Certainly not history. It's been crystal clear that Article III requires lifetime appointments since the Constitution was drafted. Federalist 78 discusses the need for lifetime appointments, and, frankly, I'm really not sure how the language of Article III could be any clearer: it says they shall hold their offices during good behavior. That means permanent.
That's clear from Federalist 78. It's clear from Madison's notes at the Debates. Can you point to anything that might indicate that "good behavior" doesn't mean a lifetime appointment?
Did I suggest that Federal Judges ought to be elected? I don't think I did, so your analogy is misplaced.
Whether judges are elected or subject to periodic appointments, the mischief is the same, as described in Federalist 78.
Anyway, this is a nonsensical discussion. This is well-settled and will not change.
Ok, so who is?
There is nothing in the Constitution that prohibits the Congress with the approval of the President from overturning the decisions of the Supreme Court.
There are 9 people on the Supreme Court who have sworn to uphold and defend the constitution of the United States. There are 435 Congressmen, 100 Senators as well as the President who have also taken that oath. Why should we consider that the Supreme Court has the final say in regard to the meaning of the Constitution? Where in the constitution is the Supreme Court given that sole authority?
Clearly if the Congress overturned a decision of the Supreme Court by an act of Legislation, this would create a constitutional crisis. But that is only because Congress allowed the Supreme Court to usurp their own interpretive powers in Marbury v. Madison. The only reason that there wasn't a constitutional crisis then was because Congress did not act to overturn Marbury v. Madison by legislative fiat. They acquiesced to the decision of the Supreme Court. They have been doing so ever since. They do not have the power to overturn a Supreme Court Opinion because they have never attempted to use that power. For instance, I think Congress clearly has the power to overturn Roe v. Wade by enacting legislation simply granting 14th amendment "life and liberty" protection to the unborn. Congress was specifically granted that power. It is in the amendment. If I were in Congress, I would introduce such legislation. I'm sure it wouldn't go anywhere, but that doesn't mean it could not be done.
That is interesting. I hadnt been familiar with that. It begs a question, though. I think of FDR and how the Supreme Court kept striking down his socialist programs so he proposed to restructure the court with new members, giving himself a reliable majority. The outrage was too much for him to bear and he had to withdraw his idea to pack the court.
So if it was legal, why not just have congress pass the programs and make them not subject to review? Interesting.
My guess would be that FDR did not have a filibuster proof Senate.
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