Recent events remind us of the ongoing problem of anti-democratic and anti-constitutional judicial activism. Last month a federal district court judge in Massachusetts struck down portions of the Defense of Marriage Act. Last week, another federal judge struck down California’s recently enacted constitutional amendment defining marriage as a union between one man and one woman. Both cases involve the invalidation of democratically enacted laws on the basis of arguments that turn constitutional provisions to purposes that no one could plausibly contend were entertained by their framers or ratifiers. To this extent, such rulings are properly understood as attacks on democratic self-government and the rule of law.

Such judicial activism has been an ongoing problem for decades. In response, a conservative legal movement has arisen to offer resistance through public and scholarly argument, the election of constitutionalist presidents and senators, and, ultimately, the appointment of judges and justices who will confine themselves to the requirements of the constitution and refrain from imposing their own values as law. Such efforts have been fruitful but never fully effective. Judicial activism has been slowed but not stopped, with the result that democratic self-governance and the rule of law continue gradually to erode. Since even the incremental surrender of these fundamental principles of American republicanism is unacceptable, it is time to weigh the use of stronger medicine. It is time to consider the impeachment of federal judges as a remedy to judicial activism.

Impeachment will place the argument against activist decisions on its proper footing—presenting them not as mere errors, but as illegitimate usurpations of power lodged elsewhere, as incompatible with the preservation of democratic self-government and the rule of law. Despite their insulation from the political process, most judges are sensitive to public opinion and mindful of the need to maintain the courts’ public legitimacy. Thus the debate begun by judicial impeachments will, if pressed publicly, reasonably, and tenaciously, foster restraint among the more prudent federal judges, who will perceive that such debate is not in the institutional interests of the judiciary.

Such a proposal will, of course, provoke a chorus of outraged objection from the American left, which has won so many of its policy victories through the promiscuous use of judicial activism. It will be said that the use of impeachment constitutes an attack on the independence of the judiciary, and hence an attack on the constitution itself, insofar as judicial independence is a key constitutional principle. Such an argument, however, mistakenly elevates a mere institutional means to the status of a constitutional end. The founders did value judicial independence, not as an end itself but as a way of securing the impartial rule of law. The purpose of an independent judiciary was to ensure that the constitution was observed according to its original meaning, despite the whims of temporary impassioned majorities. It was not intended to allow judges to invent new constitutional doctrines out of whole cloth and impose them authoritatively on an unwilling populace. Yet the latter is precisely what modern judicial activism entails.

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The founders were practical men who sought the most effective ways to secure lawful self-government. Accordingly, they frequently appealed to the lessons of experience. In our time, experience shows that the independence of judges, which was designed to protect the constitution as a rule of law, has been abused to the extent that it is now a threat to the constitution as a rule of law. The institutional means has, in practice, become hostile to the constitutional end for which it was devised, and such a situation demands some corrective action. Fortunately, the constitution itself provides for such a corrective in the form of impeachment and removal of judges from office.

Some will likely object that the purpose of the impeachment power is to rid the federal judiciary of judges found to be guilty of criminal wrongdoing. Certainly this is the most common use of the impeachment power in relation to judges, but there is ample reason to believe that the constitution contemplates its broader use as a corrective to the abuse of the judicial power. The idea that impeachment is to be reserved only for cases of criminal wrongdoing receives some superficial support from the constitution’s language that it shall be used in cases of “treason, bribery, and other high crimes and misdemeanors.” The term “misdemeanor,” however, can be understood to include not only law-breaking but, more generally, misconduct. After all, Webster’s defines a misdemeanor not only as a crime less serious than a felony, but also as a “misdeed.”

Historically, this broader understanding has been borne out in the area of presidential impeachments.  For example, the articles of impeachment approved by the House of Representatives against Richard Nixon cited not only his criminal conduct, but also his misleading of the American people about his role in the Watergate cover-up. The House evidently regarded such conduct as an abuse of the office of the presidency that was worthy of impeachment and removal from office. To this extent, the grounds for impeachment appear to include unethical abuses of official authority.

Indeed, it is worth noting that the constitutional language that applies specifically to judges reinforces this conclusion in their case. Article III of the constitution provides not that judges shall serve for life, but “during good behavior”—a formulation that clearly suggests that their continuance in office depends on more than just steering clear of unlawful conduct. Moreover, it is reasonable that the constitution should imply a lower standard for judicial impeachments than for executive branch ones, insofar as judges, not having to face re-election, can be restrained in the conduct of their offices by no other principle.

It should be obvious that judges are capable of non-criminal misconduct for which impeachment is an appropriate punishment. A judge might, for example, manipulate his enforcement of trial procedure and the rules of evidence so as to ensure a conviction that might not have been secured on a more neutral management of the trial. He might do so, moreover, on the basis of his own private conviction that the defendant is guilty of some other crime for which he is not being tried in this case. Surely no one would deny that a judge who behaves in this manner deserves not only to have the verdict of his court reversed on appeal, but also that he himself deserves to be disciplined by being removed from office. The former remedy can correct the injustice at hand, but only the latter can ensure that it is not repeated.

Again, someone might object that there is a difference between this kind of mistreatment of a litigant at trial and the case of a judge dealing with constitutional questions. There is indeed a difference, but it is one that makes impeachment just as appropriate, or even more appropriate, to the latter case. The cases are analogous to the extent that both involve a judge allowing his personal convictions about what is just to influence the exercise of his duties. Nevertheless, the one who indulges such behavior in relation to judicial review arguably does something worse. For the trial judge who abuses his procedural discretion against a litigant does violence most immediately only to the rights of specific persons, while the judge whose moral and political prejudices lead him to strike down laws on the basis of spurious constitutional theories does violence to the rule of law and self-government, that is, to American republicanism itself.

Moreover, the use of impeachment as a restraint on an ambitious judiciary was publicly advanced by one of the leading defenders of the constitution during the ratification debates. The problem of what we now call judicial activism was a common worry of the anti-federalist opponents of the constitution, who feared that federal judges would use their power of judicial review to strike down democratically enacted laws, intruding illegitimately on the legislative power. When the anti-federalists pointed this out, Alexander Hamilton, writing in Federalist 81, responded that a “complete security” against such abuses was provided by “the important constitutional check” found in “the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other.” Hamilton says that there is no serious danger that “judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.” Hamilton’s faith in judicial good behavior was based on the constant implicit threat of impeachment.

The rise of the tea parties has revealed widespread dissatisfaction with the fecklessness and irresponsibility of the political class. An appetite to see its worst members called to account could be extended to the judicial class. Indeed, the rise of the tea party movement indicates a widespread openness to restoring the vitality of American republicanism precisely by returning to the principles of the founders. Politicians and public figures concerned about the ongoing abuse of the judicial power should do a lot of work to remind citizens of the compatibility of judicial impeachments with constitutional principles.

It is possible that despite being constitutionally sound and, potentially, politically appealing, this strategy is doomed to fail as policy. It is extremely unlikely that the House and Senate would approve articles of impeachment against a judge. Nevertheless, judicial impeachments need not lead to removals from office in order to exert a wholesome restraining influence on potential judicial activists. Merely to introduce articles of impeachment, and to defend them vigorously in the proper terms, will tend to induce caution in federal judges, who, again, must be sensitive to public perceptions of their legitimacy.

The hour is late. Over the last three generations the federal courts have more and more usurped the right of the American people to govern themselves, not merely in trivial matters but in relation to weighty issues such as the protection of life, the definition of marriage, and the rights of enemy combatants. It is time to restrain such judicial excesses by using the tools provided by the constitution for that very purpose.