Monday, June 8, 2009

Me vs. The Supremes – Part VIII

The premise of my Third Lawsuit was that Congress was limited to removal of “civil officers” only for: (i) treason, (ii) bribery, or (iii) other high crimes and misdemeanors and thus left to the People was the right to seek removal for “misbehavior”. The premise had significant historical support.  It also immediately faced significant judicial reaction as its implications could undermine the judicial oligarchy which has evolved to threaten -- rather than protect -- our liberty . . .

The law on removal of civil officers for “high crimes and misdemeanors” dates back at least 623 years to 1386 when Chancellor Michael de la Pole, Earl of Suffolk, was removed from office for misappropriating funds. However, as reported by Max Farrand in his “Records of the Federal Convention of 1787” (Yale University Press, 1911)(hereinafter “Farrand”), the phase “high crimes and misdemeanors” had a specific and technical meaning which – after due consideration and debate – was chosen along with “Treason” and “Bribery” to be the sole basis for impeachment of “civil officers” by the House and Senate.

At the Constitutional Convention, George Mason stated in discussing Article II, §4: “Treason as defined in the Constitution will not reach many great and dangerous offenses. . . . Attempts to subvert the Constitution may not be Treason as defined above . . . it is the more necessary to extend the power of impeachment [beyond Treason and Bribery]”. Farrand, Vol. 2, p. 550. Accordingly, Mason suggested adding the term “maladministration”. Farrand, Vol. 2, p. 550. However, James Madison objected stating: “so vague a term [as maladministration] will be equivalent to a tenure during the pleasure of the Senate,” and “high crimes and misdemeanors” was thus substituted in its place and thereafter ratified. Farrand, Vol. 2, p. 550.

Rauol Berger in his exhaustive treatment, Impeachment: The Constitutional Problems (1973)(hereinafter “Berger”) devoted 52 pages and 234 footnotes to the term “high crimes and misdemeanors” and its evolution. Upon such analysis, Raoul Berger concluded:
Although impeachment was chiefly designed to check Executive abuses and oppression, there was no thought of delivering either the President or the Judiciary to the unbounded discretion of Congress. This is attested by the Framers’ rejection of the unfettered removal by Address, by their rejection of “maladministration” because that was “so vague” as to leave tenure “at the pleasure of the Senate, and by the substitution of “high crimes and misdemeanors” with knowledge that it had a “limited” and “technical meaning.” (Footnotes omitted).
Berger at 123-124. Other scholars have reached the same conclusion. Accord: Burke Shartel, Federal Judges – Appointment, Supervision and Removal – Some Possibilities under the Constitution, (15 J.Am.Jud. Soc.,79, 85 (1931-1932)(hereinafter “Shartel”)(“[T]he framers of the constitution did not wish to make the executive and judicial officer of our government completely dependent on congress. They wanted to confer only a limited power of removal, and the desire limitations on the power to impeach had to be explicitly stated.”); Prakash and Smith, How to Remove a Federal Judge, 116 Yale Law Journal, 72, 82 (2006)(hereinafter “Prakash and Smith”)(“The language in Article I relating to removal itself is instructive – it reads as a limitation rather than a grant of power to the Senate: “Judgement in Cases of Impeachment shall not extend further than to removal from Office . . .” To read this language as if it provided that “Judgement in Cases of Impeachment shall be the only means of removing offices” is to take unwarranted liberties.”).

As stated in Marbury v. Madison, 5 U.S. 137, 176 (1803), it is axiomatic that:
[T]he people . . . organized the [United States] government, and assigned to different departments their respective powers. . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. 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. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
As such, impeachment is only allowed in three instances by the People to Congress: (i) Treason, (ii) Bribery and (iii) High Crimes and Misdemeanors.  I had the legal basis to file suit for the forfeiture of the office of United States Supreme Court Justice for violating 28 U. S. C. §455.  And that is what I did.


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