"Checks and balances are our only security" — John Adams
As the already infamous rally against the Argentine Supreme Court approaches, lawyer and constitutional scholar @ututo2000 is busy organizing a 'counter-rally' scheduled for the third of February. Meanwhile, he's tweeting about the importance of judicial independence. I take it as a great opportunity to travel back in time. The Virginia convention (1829-January 1830) is set to re-write the old 1776 constitution. Aging former presidents James Madison (78) and James Monroe (71) haved accepted to serve as delegates. So has Chief Justice John Marshall (74). A powerful mélange of experience and prestige!
As the already infamous rally against the Argentine Supreme Court approaches, lawyer and constitutional scholar @ututo2000 is busy organizing a 'counter-rally' scheduled for the third of February. Meanwhile, he's tweeting about the importance of judicial independence. I take it as a great opportunity to travel back in time. The Virginia convention (1829-January 1830) is set to re-write the old 1776 constitution. Aging former presidents James Madison (78) and James Monroe (71) haved accepted to serve as delegates. So has Chief Justice John Marshall (74). A powerful mélange of experience and prestige!
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In January the convention starts discussing the judiciary article of the constitution. In his preliminary draft, Marshall's proposal provides for the tenure of state judges. His summation, writes biographer Jean Edward Smith, was "magnificent" (*):
The judicial department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not to the last degree important, that [a judge] should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? [...] The independence of all those who try causes between man and man, and between man and his government, can be maintained only by the tenure of their office. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent Judiciary. Will you draw down this curse upon Virginia?
Note the arguments of the proto-populist Jeffersonians, clearly stated by governor Giles: "I am as much in favour of the complete independence of the judiciary as the warmest advocate of that principle, but I am in favour of its responsibility also ... I would make the Judges responsible, not to God and their own consciences only, but to a human tribunal". In the event, judicial tenure was sustained 56-29, and the judiciary article in Virginia's new constitution was approved essentially as Marshall had written it.
(*) Jean Edward Smith. John Marshall. Definer of a Nation (New York: Henry Holt, 1996), pp. 502-507. See also James F. Simon. What Kind of Nation. Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (New York: Simon & Schuster, 2002). From Contrapesos: "Sobre el magnífico artículo de Manuel-José García Mansilla", June 2020.
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