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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 13



Article III is devoted to the judicial branch of our national government.  It is shorter still than Article II, though there is no correlation anywhere to be found between its brevity and its importance.  For it is on the legal opinions of the judges prescribed herein that the very life of the Constitution relies for preservation.  It is the “supreme (sic) Court” (though, as you shall see in a later chapter, they are not the only ones) in which resides a power to honor and be faithful to this instrument and the vision our Founders had for it or to dishonor and pervert it through the introduction of their own personal desires.  A small matter this is not . . . an awesome power it is.


Section 1 of this Article vests the judicial power of the United States in one “supreme (sic) Court” and other lower courts as Congress may establish.  It states that the judges of all U.S. courts shall hold their office during good behavior, and that they shall receive a regular compensation which cannot be reduced during their continuance in office.


It is important to note that it is the judicial power of the United States, and only this power, which this Article regards.  The judicial power of the several states is not within its scope, and the court systems of the several states remain undisturbed as separate and distinct entities.  Furthermore, it gives no notice whatsoever that the court systems of the several states are to be under the command or auspices of the United States.  This would comply with the principles of federalism that were discussed earlier, the several states being sovereign in their own right.  This is not to say that the national courts and the state courts do not interact, for they surely do in many constitutionally prescribed instances.  It is to point out that the only constitutional supremacy granted to the “supreme (sic) Court,” vis-à-vis the state courts, relates to matters of specified jurisdiction and ensures that the decisions of the state courts are in conformity to, and in compliance with, the Constitution itself.  At least, there is no obvious reference to be found that would indicate otherwise.


If you were to ask me if I believe our current court system fully honors this section of the Constitution today, I would answer, “No.”  They may have worked out an “end run” to create the appearance of legitimacy and legality; but it is my opinion the intention of our Founders has been subverted.  Now to the question of “good behavior.”  This is a very important question because there is no specific term of office assigned to the office of a “supreme (sic) Court” judge.  Once they are confirmed in office, they hold it “during good behavior,” which is an indefinite period, until they choose to resign or death intercedes.  Of what does this “good behavior” consist?  Certainly leading a morally upright life, complying with the law of the land, and comporting oneself within the “laws of Nature and of Nature’s God” are all forms of good behavior.  It can then be argued that when one departs from these standards, one is not exhibiting good behavior.  The law of the land is governed by the Constitution.  When a judge hands down an opinion that is repugnant to the Constitution, it would seem to follow that this would not be good behavior, especially if a pattern of such behavior exists.  It would also leave them liable to removal from office.


These judges are, like you and me, mere mortals.  They are not anointed from on high.  They do not suddenly become able to discern the secrets of the Constitution by the act of confirmation to their office.  They are not unique in their ability to understand and respect (or not) the history and meaning of the Constitution.  There are certainly those in Congress who have an affinity for the workings of the instrument and have a good feel for when the Constitution has been abridged.  Even if not, other justices point the way with their own opinions in the ordinary course of their office.  Thomas Jefferson once remarked something to the effect of, “We should have a revolution every generation or so,” to the end of reminding government of the limits the people would tolerate.  My admiration for Jefferson is great, but in this I disagree.  It would be much better if our judges ruled within the limits that the Constitution prescribes and its history.  Failing that, our duly elected representatives in Washington can and should challenge them in their opinions.  Failing that, if judges refuse to change, Congress should remove them from office.  And failing all of that, Thomas Jefferson’s advice advances ever closer to the mark.


The last topic of Section 1 of Article III once again concerns the matter of compensation, this time for the court.  For this, we will return to the writings of the Founders:


Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.  The remark made in relation to the President is equally applicable here.  In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.  And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system, which leaves the former dependent for pecuniary resources on the occasional grants of the latter.  The enlightened friends to good government in every State have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head (topic).  Some of these indeed have declared that permanent * salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions.  Something still more positive and unequivocal has been evinced to be requisite.  The plan of the convention accordingly has provided that the judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”  (Italic in original, bold added).  (Federalist Papers, No.79).
* Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13. 


“. . .a power over a man’s subsistence amounts to a power over his will.”  Because Hamilton took the occasion, both as to the executive and the judicial branches, to drive home this lesson, it is quite apparent that he considered this a very significant and consequential instruction.  He stipulates, even more clearly, that to make the judiciary “dependent for pecuniary resources (their daily bread) on the occasional grants of the latter (legislative)” would make them submissive to the will of the legislature. Those efforts that had already been made were “not sufficiently definite to preclude legislative evasions.  Something still more positive and unequivocal has been evinced to be requisite.”  He stated that an effort more definite in restraining the legislature had been made because the legislative branch could not be trusted in all instances.  Which of us could take issue with him?


Please allow me to expand on my comments from Article II.  There you were introduced to the argument that income tax could produce this not-so-peculiar phenomenon.  It’s true that income tax works in kind of a backwards fashion.  That is, most of us are not directly reliant on the government for our pecuniary sustenance; but because the income tax has a little questioned claim on the fruits of our labor, we are dependent on the goodwill of the legislative branch for whatever they leave us.  The precedent for this has been long established, and now it is just a question of how much they demand.  It can be anywhere between zero and one hundred percent.  Presently, it seems that the tax rate selected and upon whom it is enforced is calculated to generate the maximum amount of revenue without causing a revolution; whether that revolution be armed or merely at the ballot box is open to some question at present.  More people are refusing to comply every year.  In any event, it does leave the productive portion of society very dependent on the legislative branch.  Consequently, income tax, with its many rates, targets, and tax breaks, can and is being used to shape our wills and manipulate our actions.  Economically speaking, this is very counter-productive because our actions become based on what produces the largest figure at the bottom of our 1040 form rather than what produces the most goods and services.  The two modes of action are not synonymous and seldom coincide effectively.


For those not actually employed by the government but who do rely on the government for their pecuniary resources, the situation is bleaker still.  Where in the first instance, because the government fears rebellion if they demand too much, the productive realistically do not have to rely entirely on the government for their pecuniary resources.  It is to the contrary in the second.  And their consequent actions are almost wholly based on what the government prescribes.  If working causes their income to rise to a level that disqualifies them for some benefit, they work less — except maybe on the black market.  If, in order to receive Aid to Dependent Children (ADC) payments, it is not permissible for a dad to live in the same house as his family, then the dad leaves home.  If, in order to leave home, have an apartment of her own, and receive a monthly stipend from the government, a young woman needs to produce a baby, in far too many cases she readily produces new life.


These circumstances reduce initiative, diminish self-respect and pride, and teach all the wrong lessons of life.  This has proceeded so far as to almost totally undermine the confidence of many in this condition as to their ability to ever again be self-reliant.  Their dependence on government is so complete that they automatically cast their precious votes for politicians who promise to continue, and even expand, the very programs that condemn them to this wretched condition, all the time believing it is in their best self-interest to do so.  (“The people never give up their liberties but under some delusion,” Edmund Burke, 1784.)  For all of our good intentions, and even efforts, I don’t know how we could make people any poorer or reduce them any further than to make them so dependent on the will of another.  It is the condition of servitude . . . serfdom . . . slavery.


The question that was asked in Article II is still valid.  If we believe this condition of dependency on the goodwill of the legislative branch is unsuitable and unacceptable for those of such persuasion as the President and “supreme (sic) Court judges”, what of the rest of us?  How much less able are we to resist the predilection and perdition of a legislative branch that holds our pecuniary resources ransom to the behavior they desire on our part?  One more thought without going into unnecessary detail.  The principle, discussed herein, that makes the will of the individual submissive to the national legislative body applies with equal vigor to the will of several states, as they too have become dependent on the national legislative body for a rather large portion of their own pecuniary resources — the fact that the national legislative body should not be removing these resources from the several states in the first place notwithstanding.




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