Guest Essayist: Ben Slomski


Essay Read By Constituting America Founder, Actress Janine Turner


“Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788

The United States Constitution places members of the federal judiciary in a unique position. Article III stipulates that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Unlike members of Congress or the President who are elected for a set term length, all federal judges are appointed for the term of good behavior. Practically, this means federal judges are appointed for life. The only way to remove a federal judge from office is through impeachment by Congress, which is limited to the cases of “Treason, Bribery, or other high Crimes and Misdemeanors.”

The logic of life tenure for judges was best explained by Alexander Hamilton in Federalist No. 78. Here, Hamilton declared that

[t]he standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Life tenure upon appointment creates independence for the judiciary in the administration of the laws. This ensures that the laws are applied in a consistent and fair manner. Even in a republican government, the individuals who comprise the legislature are human beings who can succumb to despotic passions. Judicial independence is just as useful a safeguard from oppression in a republican government as any other.

The institutional capacity of the judiciary makes life tenure especially necessary. Hamilton explained that the judiciary lacks Congress’ power of the purse and the President’s power of the sword and wrote that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary is comparatively weaker to the other two branches of government because it lacks the will to make laws as well as the force to enforce the law. There is a risk that the political branches could ignore the Constitution and the judiciary could be too weak to resist their usurpations.

In order to protect the judicial branch from the greater powers of the other branches, life tenure is necessary to create judicial independence. Hamilton stated 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 that 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.

Federal judges are appointed through a political process where they must be nominated by the President and confirmed by the Senate. Once judges are appointed, however, they have life tenure so that they do not need to rely on the political branches for any further security. Life tenure allows judges to be independent from politics so that they have the security to stand up against the political branches when necessary.

Judicial independence is beneficial under all forms of government but it turns out that it is especially necessary under the American form of government with a written Constitution. For Hamilton,

[t]he 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.

A written constitution embodies the fundamental will of the people for the government. There is no point to writing down a constitution if the written limits are not enforced. The task of enforcing constitutional limitations cannot be left to Congress or the President because each would naturally be inclined to favor itself. The judiciary must exist as a third, independent branch that stands outside the political process to enforce the Constitution’s limits. Hamilton explained that it is natural that the judiciary fulfills this role because “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Courts interpret and apply laws as part of their normal function and so it makes sense that it will be the judiciary that interprets the Constitution as the fundamental law of the land in legal cases.

Federal judges are given excellent job security because they are entrusted with a great responsibility. Article III ties life tenure to the specific office that is held, which is that of a judge on a court. Good behavior for judges is understood in the sense of carrying out one’s duties in a judicial manner. Judges act consistently with their constitutional charge when they remember that they are judges tasked with the application of the Constitution and the laws to particular legal cases. Judges stray from this responsibility when they seek to exercise the functions of legislating or executing laws and impose their will rather than the Constitution. Impeachment by Congress remains as a check on judges who misuse their office. Good behavior requires judges to resolve legal cases and invalidate government acts when necessary to preserve the sanctity of the Constitution.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.


Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Ben Slomski

Essay Read by Constituting America Founder, Actress Janine Turner



The delegates who met in 1787 for the Constitutional Convention faced a difficult task when it came to designing the nation’s executive branch. Americans of the time tended to look upon a strong executive with suspicion. This was a natural response, given the previous experience with the English monarchy. Under the Articles of Confederation, there was no independent executive. This lack of a strong executive turned out to be one of the central defects of the Articles. National authority was often just ignored by the states and disobedience towards democratically-enacted laws culminated in Shays’ Rebellion in Massachusetts. Delegates at the Constitutional Convention were challenged with creating an independent executive who would be powerful enough to enforce the laws effectively yet not so strong that he could overpower the other republican institutions of government. The result of this work was the American presidency.

The text of the United States Constitution recognizes the difficult nature of executing the law. Authority is placed in the president by the vesting clause in Article II, Section 1 which states that “The executive Power shall be vested in a President of the United States of America.” This should be contrasted with the vesting clause in Article I, Section I which grants certain legislative authority to Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress only receives the legislative powers specifically granted to it in the Constitution. The executive power granted to the president, however, is not limited to certain powers “herein granted.” Some specific examples of the president’s executive power are given in Section 2. He is the Commander in Chief of the military, can pardon crimes against the U.S., and makes treaties with foreign nations, among other powers. The powers listed in Section 2 are not an exhaustive list but rather specific instances of the way in which executive power can be exercised.

Article II, unlike Article I, does not comprehensively detail the scope of the president’s executive power because it cannot be precisely defined. The president’s function is to execute the laws passed by Congress and to “preserve protect and defend the Constitution” as enumerated in the presidential oath of office. What is necessary to enforce the law and defend the nation depends on the innumerable variety of circumstances that will occur in human life. As human beings cannot predict every emergency that might occur, they cannot list every single circumstance in which the executive can act without restricting the president during an unforeseen crisis. Therefore, the Founders wisely left the executive power broadly defined so that the president can act in whatever situation that might arise.

The broad nature of executive power does not mean that the president’s power is unlimited or arbitrary. For the president to have constitutional power to do something, the act must be executive, meaning that it does not make law but carries out existing laws. The president cannot usurp legislative power from Congress just as Congress cannot interfere with the president’s execution of the laws. Presidents also cannot nullify congressional laws by refusing to execute them. The president’s broad power is constrained by the constitutional system in which it is placed. Senate approval is needed for the ratification of treaties and the confirmation of many presidential appointees. Congress can always restrict the president through the denial of funding or impeachment. The Supreme Court can review the constitutionality of executive actions in legal cases. The people retain the ultimate check of voting the president out of office. The president is neither a dictator nor a pawn of Congress.

The constitutional insight that there must be a powerful and independent president who is defined by the executive functions he must perform was expressed well by Alexander Hamilton in Federalist No. 70. Here he wrote that:

“Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Government is ineffective unless its laws are obeyed and individuals will not respect the law unless there is a strong enough executive to ensure there is sufficient force behind the laws. A powerful president is of course needed to command the military and defend the nation from invasion. It is equally important to ensure that the government is well-administered and that laws are enforced consistently and effectively.

The genius of the Constitution is that it reconciles the need for a powerful executive with the constraints of republican government. George Washington embodied this idea as the first president. He recommended legislative measures to Congress, vetoed bills on both constitutional and policy grounds, proclaimed American neutrality between France and Britain, and personally led federal troops to suppress the Whiskey Rebellion. These energetic actions were not taken as the personal prerogatives of a king but rather as the exercise of constitutional power granted by the people to a republican servant. Washington understood the president to be the “Chief Magistrate” who must remain aware “of the confidence which has been reposed in me by the People of United America.” The executive’s power must be wielded with the humility and prudence required of a republican governing statesman.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.



Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Ben Slomski

Essay Read by Constituting America Founder, Actress Janine Turner



The idea of a constitution is an ancient one. The idea of a written constitution, however, is relatively new. To be sure, regimes have long created written documents and legal codes that outline the structure of governing authorities and protect certain rights for citizens and subjects. Yet before the United States Constitution, these written documents were not seen as fundamental for understanding what constitutes a regime. Before Americans chose to produce written constitutions, a constitution was understood in terms of the norms that make up a regime rather than the words written on any piece of paper.

Classical political thought recognized the need to study constitutions, but a regime’s constitution was the collection of formal and informal norms that made up a people’s way of life in a regime. In Aristotle’s Politics, he describes the regime (the Greek word politeia) as “an arrangement of a city with respect to its offices, particularly the one that has authority over all matters. For what has authority in the city is everywhere the governing body, and the governing body is the regime.” In other words, the constitution of a city was not a legally-binding written document outlining the powers and restrictions on officers. Instead, the constitution was the way the people of a regime lived and how they chose to organize their governing offices at a given time. Constitutions were much less a matter of fixed law and much more a matter of a people’s organic norms. Politics was inherently contingent as a regime would change in its nature whenever the people changed in their ways and how they chose to organize authority.

All of this changed with the United States Constitution. Certainly, the idea of a written document to serve as the fundamental law of government did not spring from the mind of James Madison in 1787 without any antecedents. Early settlers of the American colonies wrote documents outlining the governing principles for their new settlements, such as the Pilgrims’ Mayflower Compact. The idea of a model constitution for a regime had been developing in modern political thought, such as in John Locke’s Second Treatise of Government. During the American Revolution, states began writing new constitutions even before the Declaration of Independence was published. The Continental Congress passed the Articles of Confederation as the first written constitution for the United States. The document produced by the Constitutional Convention in 1787 to correct the defects of the Articles, which was then ratified by the American people, was the culmination of these efforts.

The shift in thinking on the importance of a written United States Constitution cannot be understated. The implicit idea was that a written document outlining the new government’s fundamental principles and its structure could establish a legal and political framework to shape the informal norms by which the people constitute themselves. The Constitution would serve an educational role by informing citizens of the government’s organizing principles. Under a written constitution, politics could be at least less contingent than under the older notion of a constitution as there are written norms that can last across generations to shape political conduct. A written constitution does not guarantee any political outcomes, of course, as politics will always be subject to the individual choices of human action. The Constitution does, however, distribute authority and establish norms in a way that will make certain outcomes more likely. The Constitution establishes a lasting structure to guide politics because there are further principles embedded in the idea of a written constitution.

One of the central ideas behind writing a constitution down is that government’s power is not unlimited. Chief Justice John Marshall explains this well in the famed Supreme Court case Marbury v. Madison:

“To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.”

If the government’s power is absolute, then there is no reason to write down restrictions on government because it would be free to do whatever it wants. If limits on government authority are written down, then it is assumed that these limits will be upheld; otherwise, there was no point to writing the limits down. Marshall thus proclaims in Marbury that a written Constitution is “what we have deemed the greatest improvement on political institutions.”

The deepest assumption behind the idea of a written constitution is that all political power originally comes from the people. If government’s power came from within itself, then there would be no natural limits to what government can do and no need for written restrictions. Instead, governmental power is granted by the people and a constitution serves as a specific statement of what is granted and what authority the people retain for themselves. This delegation of power must be done in an explicit, concrete act by writing it in a public document approved by the people to embody their fundamental will. The written United States Constitution recognizes that the ultimate source of authority remains with the people who have enacted a document to last for ages so that future generations will share the blessings of this supreme law of the land.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.



Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.