美国宪法第三条评述.docx

1、RESPONSETHE YALE LAW JOURNALMARTIN H. REDISHLouis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law. I would like to thank Abby Mollen of the class of 2008 at Northwestern Law School for her valuable research assistance and my colleagues Bob Bennett, Steve C

2、alabresi, and Andy Koppelman, as well as Dennis Murashko of the class of 2007, for their very helpful comments on an earlier draft. U.S. Const, art. Ill, 1, cl. 2 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receiv

3、e for their Services a Compensation, which shall not be diminished during their Continuance in Office.”).Response: Good Behavior, Judicial Independence, and the Foundations of American ConstitutionalismINTRODUCTIONThe so-called Good Behavior Clause of Article III1 could well be the most mysterious p

4、rovision in the United States Constitutionand that, of course, is really saying something. While constitutional text was on occasion chosen for the very purpose of avoiding the resolution of, rather than resolving, disputes,A number of such provisions appear in the judicial article concerning the ex

5、tent and nature of congressional power over federal court jurisdiction. See, e.g., id. cl. 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”); id. 2, cl. 2 (“The Supreme Court sh

6、all have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”). For analysis of these provisions, see Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 7-52 (2d ed. 1990). and while ambiguity

7、 permeates many of the most famed and controversial provisions,See, e.g., U.S. Const, amend. XIV, 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”). rarely are a pr

8、ovisions purpose, scope, and methodology so totally nonexistent to the naked eye.It is simply unclear, on the face of it, what the provision is all about. One can search the text in vain for any indication of how the concept of “good Behaviour” is to be defined, who gets to make that determination,

9、and what the method for implementation and enforcement of this provision actually is. Moreover, the text provides absolutely no basis on which to attempt to harmonize the Good Behavior Clause with the Constitutions other provisions pertaining to the independence or control of the federal judiciary.

10、Perhaps for these reasons, both courts and Congress have largely ignored the provision, choosing instead to focus the political control of the judiciary on the constitutionally recognized congressional powers to regulate federal jurisdictionSee id. art. Ill, 1, 2. and to impeach federal officers (in

11、cluding federal judges).See id. art. II, 4 (“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”); see also id. art. I, 2, cl. 5 (giving the House of R

12、epresentatives “the sole Power of Impeachment”); id. 3, cl. 6 (giving the Senate the power to try impeachments); Nixon v. United States, 506 U.S. 224 (1993).Scholars, too, have focused on the Good Behavior Clause only rarely.There are, however, certain exceptions. Several scholars have, in fact, com

13、mented on the relevance of the Good Behavior Clause to the control of the federal judiciary. See, e.g., Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 65-70 (1989); Charles Gardner Geyh & Emily Field Van Tassel, The Independence of the Judicial

14、 Branch in the New Republic, 74 Chi.-Kent L. Rev. 31, 35-42 (1998); Suzanna Sherry, Judicial Independence: Playing Politics with the Constitution, 14 Ga. St. U. L. Rev. 795, 797-802 (1998). For these reasons Professors Saikrishna Prakash and Steven Smith, both noted and respected constitutional scho

15、lars, are to be applauded for finally assuming this scholarly challenge and responding to it with so controversial and innovative a solution. In their article, How To Remove a Federal Judge,Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 Yale L.J. 72 (2006). these scholars a

16、rgue that the Good Behavior Clause is constitutionally capable of playing a far greater role in policing federal judges than it has played up to now. They contend that the traditionally accepted view that impeachment provides the exclusive constitutionally recognized means of removing federal judges from office is “unpersuasive and ahistorical.”Id. at 75. The “better reading,” they suggest, is that under the Good Behavior Clause “offi