Comments on Constitution-Article VI

     The Supreme Law of The Land

Article VI declares the Constitution to be the supreme law of the land.  Amendments are automatically considered a part of the
Constitution when they are properly ratified by the states.  In addition, all laws consistent with the powers delegated to the federal
government and all treaties made under the authority of the United States and properly ratified by the Senate become a part of the
Constitution.

Laws that are contrary to the requirements of the Constitution are binding, subject to being set aside by the courts.  All judges are
bound by oath to uphold the Constitution and have the obligation to declare any laws contrary to it as unconstitutional and void.  
Judges who refuse to uphold the Constitution or who look for hidden meanings in its language in order to support their own political
and social agendas are violating their oath of office.

Those who flagrantly do so, under the provisions of the Constitution, are to be removed from office by impeachment.  However, the
impeachment of federal judges is rare in our history.   To date, only thirteen have been impeached by the House of Representatives,
and only six of those have been convicted by the Senate.

Only one Supreme Court Justice has ever been impeached by the House, Associate Justice Samuel Chase in 1804.  Justice
Chase, a strong federalist, was accused of having allowed partisanship to influence his judicial decisions.  An Article of
Impeachment was drawn up by the House and passed.  The Senate, however, acquitted him by one vote: 17 votes for conviction and
9 for acquittal.

When the Founding Fathers gave federal judges a lifetime appointment, it was assumed they would be removed from office by
impeachment for violating their oath of office.  This is the main argument used by Alexander Hamilton against the anti-federalists
who feared the establishing of a federal judiciary with lifetime tenure.

    “And the inference is greatly fortified by the consideration of the important constitutional check which the power in instituting
    impeachments …. would give to that body [Congress] upon the members of the judicial department.”  ~ (Federalist Papers,
    No. 81)

A major obstacle to the impeachment of judges is the controversy concerning what constitutes an “impeachable offense”.  President
Gerald Ford when he was House Minority Leader in 1970 defined the criteria as he saw it:  "An impeachable offense is whatever a
majority of the House of Representatives considers it to be at a given moment in history."

The Constitution provides the authority for impeachment, but gives little help in determining the threshold for when it should be
employed.
Article III, Section 1 states, “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good
Behavior…”  The phrase “during good behavior” refers to their performance in office, not their social behavior and implies their
vulnerability to impeachment.

Article IV, Section 2 defines an impeachable offense as “treason, bribery, or other high Crimes and Misdemeanors.”  The term “High
Crimes and Misdemeanors” is confusing to most of us because it is not a part of our normal vocabulary.  In criminal law, offenses
are categorized as “felonies” and “misdemeanors” according to their gravity.  However, “High Crimes and Misdemeanors” does not
come from criminal law, but from English Common Law and is not directly related to statutory offenses.

The term is used to refer to offenses not necessarily covered by criminal law and is related to the status of the offender, not the
gravity of the offense.  Persons holding high office are held to a different standard than ordinary citizens.  For example, a person
employed in the private sector may accept a “tip” from a customer in appreciation for a special favor without penalty, where a person
holding public office might be impeached, fired and possibly prosecuted for the same act.

In general, an impeachable offense might be thought of as one that violates the person’s oath of office.  While not every violation of
one’s oath constitutes an impeachable offense, every impeachable offense involves a violation of their oath of office.  The higher the
office, the more serious the offense.

The failure of the Legislature to hold judges accountable for violations of the Constitution leaves the American people at the mercy of
every whim of the courts.  This was the condition Thomas Jefferson complained about in a letter to a Judge Roan dated September
6, 1819.  

    “In denying the right they (the courts) usurp of exclusively explaining the constitution, I go further than you do.  The
    constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any
    form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is
    independent, is absolute also.”

In the absence of a constitutional amendment, providing for a means of reining in the actions of the courts, impeachment is the only
defense against judicial tyranny.   
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