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Gerald Ford and impeachment

Matthew Franck takes to task SCOTUSBlog's Lyle Denniston's caricature of then-Rep. Ford's argument for the impeachment of Justice Douglas. I think Franck has the better of it. Note espeically Alexander Hamilton's Federalist No. 81:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

It's remarkable to compare and contrast Hamilton's views of checks and balances against the popular wisdom that mere criticism of judicial overreaching threatens "judicial independence" (Oct. 4). And, indeed, the political consensus that judges are effectively untouchable for their judicial decision-making has removed the check in the Founders' intended constitutional structure, resulting in precisely the judicial usurpation of legislative decision-making that otherwise would have been the phantom danger that Hamilton predicted.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.