I.
Modern medicine has increased lifespans drastically since the Founding. Where elected and appointed officials once met their Maker in their fifth, sixth, or seventh decades, the same today now regularly achieve their eighth or ninth—concomitant cognitive decline be damned.
This raises the pressing question: are we to live under the dictate of the senile? According to the Founders, no.
This article proceeds in six parts. Following this introduction, Part II reviews the Constitutional text and precedent governing judicial tenure to determine that “life” tenure naturally concludes at “death.” Part III reviews the history and original public meaning to conclude that “death” includes artificial, human causes. Part IV looks to tradition and history, tracing the employment of human-caused death to terminate one’s tenure in constitutional office at Common Law and circumstances at the Founding, to conclude that the President wields what may be termed “involuntary-retirement authority” over Federal judges. Part V considers the scope of Legislative authority necessary for lawful Presidential use of the involuntary-retirement authority. Part VI concludes.
II.
Article III of the United States Constitution directs: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”—language interpreted (correctly or not) to guarantee Federal-judicial life tenure.[1] By natural corollary, Federal judges serve until retirement or death.
Common experience illustrates a variety of terminal circumstance. Some judges die in hospital.[2] Some prefer the comfort of their home.[3] Some, in the vein of Louis Vierne, famed organist at the Cathedral d’Notre-Dame de Paris,[4] might even prefer a poetic expiration on the bench.[5] In the ordinary course, these forms would be termed “natural.” But nothing in the Constitutional text requires the conclusion of judicial tenure to be so. Thus, we must look to the original public meaning, alongside our history and tradition, for guidance.
III.
That several of the States prohibited one to cause the death of another, absent some justification, at the Founding illustrates an understanding that the term “death” included artificial, that is human, causation.[6] Many of the Founders themselves, having served both during the American front of the Seven Year War (known to them as the French & Indian War)[7] and in our own War for Independence,[8] would have been well acquainted with the concept of one causing the death of another. Indeed, several Founder’s later conduct during the Nation’s first generation illustrate their understanding of the term “death” to include human causes.[9]
IV.
History and tradition ground our employment of human-caused death to constitutional ends. Certainly, the Founders would have understood it to be so, having so recently achieved independence from Great Britain by causing the deaths of others.[10] So too, President Lincoln employed the human-caused deaths of several hundred thousand Americans[11] in furtherance of what has been termed the “Second Founding” by eminent historians[12]—Reconstruction and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments.
Yet still more deeply rooted in our history and tradition than the employment of human-caused death to structural-constitutional change is its employment to the specific end of terminating the tenure of a Constitutional officer, thus Parliament’s involuntary retirement of Charles I by the axe in 1649.[13]
This is not to claim lawful all human-caused deaths to the meanest ends of State. For one, the minimum quanta of executive authority and legislative approval required remain unclear in the historical record. Both the King’s death and the wartime slaughters enjoyed legislative mandate. And for another, while criticism of Vice President Burr’s unilateral killing of Secretary Hamilton may have stemmed either from the lack of legislative approval or from the inadequacy of his office,[14] concern may also have stemmed from the more political rather than Constitutional ends of the killing.[15] In this light, mere political purposes, as opposed to fundamental constitutional ones—such as dramatically restricting sovereign prerogative or reconstituting the state entirely—may detract from the substantive lawfulness of the act.
Nevertheless, for present purposes, two inescapable conclusions may be discerned. First, the death concluding a Federal judge’s tenure includes artificial, i.e., human, causation. Second, such involuntary retirement should further an important constitutional end.
Some may consider this conclusion uncouth. But it is a proud boast of this nation that we are one of laws and not of men.[16] The rule of law does not permit us to reform the Constitution at a whim to conform to fleeting moral and social sensibilities.[17] Article V prescribes the method of amendment.[18]
V.
Charged with execution of the law, the Constitution necessarily vests the involuntary-retirement power in the President.[19] But, as hinted, the quantum of legislative approval required to wield this power remains unclear. Following the example of Charles I, bicameral Congressional legislation might seem required.[20] However, our Constitutional text and precedent indicate otherwise.
To begin, even if executed by the President, a Congressional directive to involuntarily-retire a Constitutional officer would appear to be an expressly-prohibited bill of attainder.[21] But the Founders appear to have grasped this tension, given the Constitution entrusts the appointment and removal of Officers of the United States to the President.[22] To be sure, appointment requires the advice and consent of the Senate.[23] But long-standing precedent recognizes the President’s unilateral removal authority.[24] Thus, the Founder’s wisdom revealed: a unilateral involuntary-retirement power vested in the President traverses the prohibition against a bill of attainder. This by no means grants unconstrained power.[25] It is, as in many other cases, to consign legislative oversight of the matter to its impeachment authority.[26]
VI.
In sum, no—neither the Constitutional text regarding judicial tenure nor its original public meaning compel us to live under the senile dictate of the octogenarian. To important constitutional ends, the Constitution vests the President with a unilateral involuntary-retirement authority over the judges and justices of the Federal bench.
Future scholarship should delve into the scope of important Constitutional ends justifying such presidential action. Additionally, given the Burr-Hamilton precedent, such scholarship should also consider Presidential competence to delegate of involuntary-retirement authority to other Officers of the United States and, perhaps, inferior officers, especially in light of the newly developed Major Questions Doctrine.[27]
Last, as hinted above, the involuntary-retirement authority raises certain tensions with modern sensibilities. Future scholarship might consider and propose language for constitutional amendment modifying the authority, authorizing other means of judicial removal, or ending life tenure altogether.
[1] Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 89 (2006); Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 669 (1969); N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955).
[2] Emily Langer, Gladys Kessler, federal judge in landmark tobacco lawsuit, dies at 85, Wash. Post (Mar. 22, 2023), https://www.washingtonpost.com/obituaries/2023/03/22/gladys-kessler-tobacco-judge-dead/.
[3] Tom McGhee, U.S. District Judge Walker Miller dead at 74, Denver Post (Mar. 26, 2013), https://www.denverpost.com/2013/03/26/u-s-district-judge-walker-miller-dead-at-74/.
[4] Christina Foerch et al., A beautiful stroke? A side note on the 75th anniversary of the spectacular death of the French organist and composer Louis Vierne (1870-1937), 34 Cerebrovas. Dis. 322 (2012).
[5] As one Federal judge has indicated to the author.
[6] People v. Pettit, 3 Johns. 511 (N.Y. 1808); Respublica v. Mulatto Bob, 4 U.S. 145 (Penn. 1795).
[7] Among them, George Washington.
[8] Washington again, Alexander Hamilton, Aaron Burr, etc.
[9] Burr v. Hamilton (Weehawken, N.J., 1804).
[10] David McCullough, 1776 (Simon & Schuster 2005).
[11] Statistics on the Civil War & Medicine, Ohio State Univ., Dept. History, eHistory, https://ehistory.osu.edu/exhibitions/cwsurgeon/cwsurgeon/statistics (last accessed July 28, 2023).
[12] Eric Foner, The Second Founding (Norton 2019).
[13] UK Parliament, Death Warrant of King Charles I (1649).
[14] Putatively offered the post of vice president to Zachary Taylor, Senator Daniel Webster reportedly, though likely-enough apocryphally, remarked “I do not propose to be buried until I am really dead and in my coffin.” Colleen Shogan, The Vice-Presidency, White House Hist. Ass’n (Aug. 25, 2021), https://www.whitehousehistory.org/the-vice-presidency.
[15] To Alexander Hamilton from Aaron Burr, 21 June 1804, Nat’l Archives, Founders Online, https://founders.archives.gov /documents/Hamilton/01-26-02-0001-0207.
[16] Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (quoting Part the First, Article XXX, of the Massachusetts Constitution of 1780, apparently unaware that the Massachusettans had in turn borrowed the phrase from Harrington’s Oceana).
[17] Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting).
[18] “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.” U.S. Const., art. V.
[19] “The executive Power shall be vested in a President of the United States of America.” Id., art. II, § 1.
[20] See supra, note 13.
[21] U.S. Const., art. I, § 9, cl. iii.
[22] Id., art. II, § 2, cl. ii.
[23] Ibid.
[24] Seila Law LLC v. CFPB, 591 U.S. ___, 140 S. Ct. 2183 (2020); Myers v. United States, 272 U.S. 52 (1926).
[25] James Madison, Federalist No. 51 (1788).
[26] Morrison, 487 U.S. at 697.
[27] West Virginia v. EPA, 597 U.S. ___, 142 S. Ct. 2587 (2022).
I like the idea, but seems to be a bit of a stretch, particularly given the citing of Aaron Burr/ Hamilton.
Burr was merely defending himself after Hamilton shot at him first!