Thursday, October 29, 2015

The Wizard of Odds

“We are not in Kansas anymore,” said Dorothy.
“Oh,” said the Scarecrow.
“But we are,” said the Cowardly Lion.
“No,” barked Toto, “this is Tombstone Territory.”
The Tin Man just wanted to avoid rust. 

Because they care so deeply about “original intent,” self-styled “conservatives” or “strict
constructionists” may want to weigh the words of one who attended the Federal Convention.

“It is agreed on all sides, that the powers properly belonging to one of the departments ought not to
 be directly and completely administered by either of the other departments.  It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.”  (The Federalist Papers, No. 48, James Madison) 

When the Kansas High Court upheld the ruling of a lower tribunal, based on a provision of the State
Constitution requiring equitable education funding, the Governor and Legislature retaliated.  They took away its power to appoint the Chief Judges of the District Courts.  But that poses a problem because, according to Article III, Section 1 of the Kansas Constitution, “The Supreme Court shall have general administrative authority over all courts of this State.” 

The battle with the political branches has become another showdown at the OK Corral.  This time the Clanton Gang is the Governor and the Legislature, and the classic Western line has been spoken.  “This town is not big enough for the both of us.” 

If the Kansas courts stand up for themselves like Wyatt Earp, his brothers, and Doc Holliday—and win—the fight is not over, because the Clantons intend to change how jurists are appointed and removed.  At present, to reduce the influence of politics, a commission compiles a list from which Supreme Court Justices are chosen; and they are subject to “impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”  (Kansas Constitution, Article II, Section 28)  But the Governor has proposed partisan elections or appointments originated by him alone.  Meanwhile, the Legislature considers removal—by recall, with a third of the vote sufficient for dismissal, or by impeachment for “attempting to subvert fundamental laws and introduce arbitrary power,” “attempting to usurp the power of the legislative or executive branch of government,” and “failure to adequately supervise subordinate employees.”

A policy dispute is one thing, dismemberment is another—and the danger is not confined to Kansas.
If that seems extreme, consider what is at stake. 

“The judiciary...has no influence over either the sword or the purse; no direction either of the
 strength or of the wealth of the society; and can take no active resolution whatever.  It may truly be
 said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the
 aid of the executive arm for the efficacy of its judgments.”  (The Federalist Papers, No. 78, Alexander Hamilton) 

If the past is prologue, then leaders must study history to avoid making the same or similar mistakes in the future.  But that experience has to be distilled before one can imbibe wisdom.  Here, the lesson learned by “the superintending government” should be instructive regarding the protection of the judiciary and give the States pause as the lens of history brings things into focus and their significance becomes apparent.  (The Federalist Papers, No. 48, James Madison)  Mom and dad are not abstractions, for perspectives change depending upon where one stands.  But principles endure; and problems occur if that does not hold, as happened when Senator Blount faced removal from office.

Jefferson wrote Madison sourly at the time, “I see nothing in the mode of proceeding by impeachment but the most formidable weapon for the purpose of dominant faction that was ever contrived.  It would be the most effectual one of getting rid of any man whom they consider dangerous to their views.”
     Once President, however, Jefferson, now enlightened by the executive perspective, himself turned to impeachment as a way of ridding the federal bench of judges whom he considered dangerous to his views.  (The Imperial Presidency by Arthur M. Schlesinger, Jr., 30; emphasis his)  

He failed.
“Since impeachment had become a ‘farce’ he now favored a constitutional amendment empowering the President to remove federal judges on the joint address of both houses of Congress.  Removal by address—that is, by a majority vote of both houses without charges or trial—had been emphatically rejected in the Constitutional Convention.  It did not seem any better as an idea two decades later.”  (The Imperial Presidency by Arthur M. Schlesinger, Jr., 33)  For, in the early days, James Madison compared what the King, unlike the President, could do.  “All the members of the judiciary department…can be removed by him on the address of the two Houses of Parliament….”  (The Federalist Papers, No. 47) 

The situation in Kansas confirms Alexander Hamilton's observation and highlights his prophecy.

              This simple view of the matter suggests several important consequences.  It proves 
              incontestably, that the judiciary is beyond comparison the weakest of the three
              departments of power; that it can never attack with success either of the other two;
              and all possible care is requisite to enable it to defend itself against their attacks.  It
              equally proves, that though individual oppression may now and then proceed from
              the courts of justice, the general liberty of the people can never be endangered from
              that quarter; I mean so long as the judiciary remains truly distinct from both the
              Legislature and the Executive....  And it proves, in the last place, that as liberty can
              have nothing to fear from the judiciary alone, but would have every thing to fear
              from its union with either of the other departments; that as all the effects of such a
              union must ensue from a dependence of the former on the latter, notwithstanding
              a nominal and apparent separation; that as, from the natural feebleness of the
              judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by
              its co-ordinate branches; and as nothing can contribute so much to its firmness and
              independence as permanency in office, this quality may therefore be justly regarded as
              an indispensable ingredient in its constitution, and, in a great measure, as the citadel
              of the public justice and the public security.  (The Federalist Papers, No. 78; emphasis

Tenure, adequate support, and the method of removal provide a measure of protection at the Federal level.  “The Judges…shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  (Article III, Section 1)  And Alexander Hamilton contrasted joint address with the better option.  “They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other.”  (The Federalist Papers, No. 79, emphasis added; see also Article I, Section 2, Clause 5 and Section 3, Clause 7 and Article II, Section 4) 

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.  Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.  If the power of making them was committed either to the Executive or Legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.  (The Federalist Papers, No. 78, Alexander Hamilton) 

A whirlwind has touched down in Kansas.  And although they may be out of touch, the actors have not been removed from reality, no matter how much some wish to escape.  Hear and take heed, Wizard and Wicked Witch of the West and Winged Monkeys. 

In a time of instant gratification—me, me, me, me, me—when that is not a singer clearing his throat, duty is an old fashion or even a dirty word.  But that is what the supreme law of the land requires.

“The Senators and Representatives before mentioned, and the members of the several State
Legislatures, and all executive and judicial officers, both of the United States and of the several
States, shall be bound by oath or affirmation, to support this Constitution….”  (Article VI, Clause 3)
So all of us who have taken the oath must recognize and respect a government consisting of three
co-ordinate and co-equal branches; and, at minimum, the public should expect and demand nothing
less from the Chief Magistrate and the Legislature of Kansas.  But, if they fail to meet their responsibilities, there is an alternative to clicking our heels three times. 

The old adage—Where there is a right, there is a remedy—can be applied to an individual and a State.  William Blackstone and Chief Justice Marshall addressed the former; James Madison the latter. 

In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.  The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.  But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution?  Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature.  (The Federalist Papers, No. 43; emphasis his) 

"The United States shall guarantee to every State in this Union a republican form of government...."
Article IV, Section 4 is clarified with a brief remark by Madison.  “A republic, by which I mean a government in which the scheme of representation takes place….”  (The Federalist Papers, No. 10)  And then he goes into more detail.
          ...(W)e may define a republic to be, or at least may bestow that name on, a government which
          derives all its powers directly or indirectly from the great body of the people and is
          administered by persons holding their offices during pleasure, for a limited period, or during
          good behavior.  It is ESSENTIAL to such a government that it be derived from the great body of
          the society, not from an inconsiderable proportion, or favored class of it; otherwise a handful  
          of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire
          to the rank of republicans, and claim for their government the honorable title of republic.  It is
          SUFFICIENT for such a government that the persons administering it be appointed, either
          directly or indirectly, by the people; and that they hold their appointments by either of the
          tenures just specified; otherwise every government in the United States, as well as every other
          popular government that has been or can be well organized or well executed, would be
          degraded from the republican character.  (The Federalist Papers, No. 39; CAPITAL emphasis
          Madison's; italics added) 

Article IV, Section 4 refers to powers delegated to the United States by the Constitution and, therefore, objections based on the Tenth Amendment are but a pretense.  Thus, an appeal to States’ rights will not suffice. 

…(T)here ought always to be a constitutional method of giving efficacy to constitutional provisions.  What, for instance, would avail restrictions on the authority of the State Legislatures, without some constitutional mode of enforcing the observance of them?  The States…are prohibited from doing a variety of things, some of which incompatible with the interests of the Union, and others with the principles of good government….  No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them.  This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union….  The latter appears to have been thought by the Convention preferable to the former….  (The Federalist Papers, No. 80, Alexander Hamilton) 

Checks and balances are the heart and blood of the system.  "...(T)he political apothegm... does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other.  ...(U)nless these departments be so far connected and as blended to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”  (The Federalist Papers, No. 48, James Madison)  But a threat to slash the veins of an organ vital to existence is not an exercise of constitutional control.  For an ultimatum is intimidation by stopwatch. 

Of course, self-styled “conservatives” or “strict constructionists” would challenge such bullying by
recalling another attendee at the Federal Convention who remarked that “If there are such things as
political axioms, the propriety of the judicial power of a government being coextensive with its
legislative, may be ranked among the number.”  (The Federalist Papers, No. 80)  For of all people, self-styled “conservatives” or “strict constructionists” must acknowledge that a line has been crossed in Kansas, and the aggression must be reversed and the border restored. 

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.   By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.  (The Federalist Papers, No. 78, Alexander Hamilton; emphasis added) 

An unavoidable problem remains.  “Enlightened statesmen will not always be at the helm” nor behind the curtain, and they must be exposed.  (The Federalist Papers, No. 10, James Madison)  For a mere assertion does not become true through endless repetition, and, like the Wicked Witch, theirs is “melting, melting.”  Yet it is not too late for the Governor of Kansas to hear the words of James Madison.  “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”  (The Federalist Papers, No. 10)
©2015 Marvin D. Jones.  All rights reserved.