A group of state senators in Kansas hope to undo by legislative fiat that which our Founding Fathers literally crafted by the sweat of their brow in the Philadelphia summer of 1787 — an independent judiciary.
Last week, the Kansas Senate Judiciary Committee recommended to the full Senate that Senate Bill 439 be passed. Entitled, “Grounds for impeachment of supreme court and certain judges of the district court,” the bill is an affront to the principles embodied in the Constitution and signals the single biggest threat to an independent judiciary in modern times.
Constitutional grounds for impeachment of a supreme court justice are treason, bribery, or other high crimes and misdemeanors. SB 439 expands these constitutional grounds by defining “other high crimes and misdemeanors” to include — what is not a crime at all — dissenting from the will of the legislature.
Under the bill, Kansas appellate judges could be impeached for meddling in legislative affairs. Kansas appellate judges, performing a traditional function in judicial review by declaring a state statute void as contrary to the Constitution, would be committing an impeachable offense.
The bill would eliminate an independent judiciary in Kansas. It makes the judiciary susceptible to legislative tampering, and subjects judges to the will of the legislature. This bill is a thinly veiled attempt to undermine the Constitution, and increase the power of the state legislature to levels not seen since before the adoption of the Constitution in the early 1780s.
The need for judicial independence arose in the United States as a direct result of judicial dependence to the Crown before the American Revolution, and judicial dependence to state legislatures after the Revolution.
The idea of the Constitution was to create a fundamental framework immune from legislative tampering. The very act of Constitution-making required specially elected conventions and ratification by the people as opposed to legislative acts.
The Constitution as a fundamental law immune from legislative tampering gave rise to judicial review. As George Wythe famously observed in 1782 while High Chancellor of Virginia in Commonwealth v. Caton, “…if the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed by them by the people, I, in administering the public justice of the country, will meet their united powers at my seat in the tribunal; and pointing to the Constitution, will say to them, ‘here is the limit of your authority; and hither shall you go but no further.’”
To be sure, the necessity of an independent judiciary was not a principle accepted without debate. James Madison, for instance, wrote in October of 1788, that this makes “the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper.”
In contrast, Alexander Hamilton, writing under the pseudonym Publius in Federalist Paper No. 78 in favor of the Constitution, declared the judiciary to be the “least dangerous” branch.
“The judiciary on the contrary 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.” According to the Federalists, “there is no liberty if the power of judging be not separated from the legislative and executive powers.”
Hamilton and the Federalists ultimately carried the day with the Constitution’s ratification in June of 1788. The Constitution codified an independent judiciary. The early years under the Constitution included the famous announcement of judicial review by the Supreme Court in Marbury v. Madison. These bedrock principles form the foundation of American liberty.
The latest attack by Kansas legislators is nothing new. Attempts to thwart an independent judiciary date from the late 1770s and early 1780s. One of SB 439 sponsors, conservative Sen. Forrest Knox, echoed American Revolutionary sentiments when he maintained the bill is necessary because, “Supreme Court justices have become kings, and there is no check.”
The irony in Knox’s words is that even the Anti-Federalists, the ideological predecessors to the modern conservative movement, recognized an independent judiciary by 1788. The Anti-Federalist Brutus wrote in January of 1788 that, the judiciary is “to be rendered totally independent, both of the people and the legislature.”
The forebears of modern conservatism recognized that which Kansas conservatives seek to undo — that judges could not be removed from office for making decisions contrary to the legislature.
The sponsors of the Kansas bill seek what they have had little success in achieving through retention elections — to remove perceived “activist judges” by impeachment.
The lasting greatness of this nation is in its constitutional design. A handful of Kansas legislators cannot be permitted to destroy it.
Isaac Ruiz-Carus is a trial and appellate lawyer with a nationwide practice at the law firm of Wilkes & McHugh, P.A. He is also a professor of law at Stetson University College of Law. Column courtesy of Context Florida.