Although most American citizens incorrectly believe Supreme Court Justices are appointed for life and therefore somehow immune from public accountability, this understanding is contrary to our Constitution, which is the supreme Law of the Land. Article III, Section 1 of the Constitution states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Accordingly, it is for a term of good behavior our federal judges hold their office, not life, and they can be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Misdemeanors, as the founders understood them, are different from how people understand them today. George Mason explained that impeachment is for “attempts to subvert the Constitution,” and Elbridge Jerry considered “mal-administration” as grounds for impeachment. Justice Joseph Story listed, among other reasons for impeachment, “unconstitutional opinions” and “attempts to subvert the fundamental law and introduce arbitrary power.” Alexander Hamilton and Justice Story defined “misdemeanor” as “mal-conduct” and Justices James Wilson and Story described “misdemeanors” as “non-statutory, which means they are offenses for which no legal code exists. From all these definitions and descriptions, it is clear they intended misdemeanors to cover acts of political misbehavior, because the founders wanted to ensure every elected and appointed official at the national level were accountable to the people.
Interpreting the Constitution contrary to its original intent is behavior that fits within the definition of misdemeanors as the founders understood it. A common legal maxim maintains all contracts are to be construed according to the meaning of the parties at the time of making them. When the State legislatures and the private citizens of America debated ratifying the Constitution, they did so under a commonly understood meaning to its words and clauses. The State legislatures later ratified the Constitution and joined in union under this supreme Law of the Land not only for their generation, but on behalf of all future generations. Federal judges who interpret the Constitution in a manner that distorts the meaning our founders applied to it and how the States and the people of America understood it during the ratification process are altering the Constitution by circumventing the amendment process in Article V, which is a breach of our national contract. Any time the Constitution is changed, it is to the advantage of one group of people and to the detriment of another, because any change would either add another requirement to, or take away liberty from some group in society. If this is done without three fourths of the States agreeing to a change it is a despotic “encroachment and oppression” upon those it disadvantages, which is an act deserving of punishment.
This illegitimate behavior is not just limited to purposeful misinterpretation of the Constitution, but extends, as pointed out by Justice Story, to referencing a different source of law other than what our founders used in establishing the Constitution and in defining boundaries to rights that are contrary to the understanding of that law. Common law, as defined by William Blackstone, was not only the foundation of the American legal system, it was the Rosetta stone by which every American during the founding era understood law. As such, every word and clause in the Constitution, unless otherwise stated in the document, must be interpreted according to common law principles. It is a criminal act for those in public office who swore an oath to uphold the Constitution to reference another source of law or limit rights based on other principles than common law, because it is contrary to original intent and thus unconstitutionally changes the Constitution, or in other words it breaks the supreme Law of the Land.
To some, breaking the supreme Law of the Land may seem like an irrelevant procedural offense, especially if one likes the change. The danger in this is that it sets a bad precedent and when a change is made that people do not like, they have very little to no legal recourse to correct it. Additionally, if we, as a nation allow elected and appointed officials to violate the Constitution through applying different meanings to its words and clauses as what was originally intended, every law in our nation will be viewed in the same way and law will then be used against the people instead of for them. This is why the President, Vice President and all civil Officers of the United States, who have taken an oath to uphold the Constitution, must be held to a rigorous standard of Constitutional interpretation based on original intent.
Implementing such a standard may not be easy, but it is not impossible. It begins with American citizens understanding original intent, voting for public officers based on this criterion, and demanding Federal supreme and inferior court judges are impeached if they cross this line in their rulings.
The impeachment process starts in the House of Representatives, where Congressman can vote to impeach a civil Officer. An impeachment trial is then held in the Senate in which the entire Senate acts like a jury and votes for either conviction or acquittal. If convicted, the impeached officer is then removed from whatever office they hold and can be prosecuted for criminal offenses in another court if applicable.
Caution must be exercised in demanding the impeachment of civil officers to ensure the reason is based on an actual violation of public trust vice partisan politics, which for the most part it has been in the history of judicial impeachments. For example, there have been sixty-one federal judges or Supreme Court Justices investigated for impeachment and only thirteen of them to be actually impeached. The only instance of a Supreme Court Justice being impeached in America’s history was Samuel Chase in 1803 and he was acquitted by the Senate.
Demanding the impeachment of a civil officer based on a breach of original intent must also be done with caution. Constitutional original intent is not a definitive perspective, there is some room for interpretation, but there are limits to its interpretation. When the body of evidence from all relevant founding documents and supplementary writings clearly points in a direction opposite to a judges opinion or if a judge references law other than foundational American law in forming their opinion, like Justice Ginsburg did when considering the subject of torture, the judge has clearly crossed the line in these cases and deserves not only impeachment, but conviction as well.
Elected officials will usually do what the majority of their voting constituents demand, therefore if voters from a simple majority of congressional districts across the nation demand their Representative impeach Federal judges they will. Additionally, if voters in enough States demand their Senators convict an impeached civil officer, they also will. This would send a very loud and clear message to Federal judges to stop legislating from the bench.
It is time, we the people of the United States of America, hold our elected and appointed officials to a rigorous standard of Constitutional interpretation based on original intent. We must do this even when we individually do not like the outcome an original intent interpretation provides. Doing anything else will undermine our Republic and either turn us into a democracy, in which we are subjected to the tyranny of the majority, or it will allow the few to impose their will upon the rest, by which we will be subjected to the tyranny of the minority.