ected it. They not
only gave the Federal judges a life tenure, but made that tenure
unqualified and absolute, the power which Parliament had to demand the
removal of judges being carefully witheld from the American Congress.
This reversed the relation which existed between the legislative and
judicial branches of government under the English system and raised the
judiciary from a dependent and subordinate position to one that made it
in many respects supreme. The most important attribute of sovereignty,
that of interpreting the Constitution for the purposes of law-making,
which belonged to Parliament as a matter of course, was withheld from
Congress and conferred upon the Federal judiciary. Not only, then, did
the framers of the Constitution depart from the English model in making
the Federal judiciary independent of Congress, but they went much
farther than this and conferred upon the body whose independence and
irresponsibility were thus secured, powers which under the English
system were regarded as the exclusive prerogative of a responsible
Parliament. This made our Supreme judges, though indirectly appointed,
holding office for life and therefore independent of the people, the
final interpreters of the Constitution, with power to enforce their
interpretation by declaring legislation null and void. A more powerful
check upon democratic innovation it would be hard to devise.

The main reason for making the Federal judges independent and
politically irresponsible has not been generally recognized. Thus, in a
recent work Professor Channing, while expressing some disapproval of
this feature of our system, fails to offer a satisfactory explanation of
its origin. "Perhaps nothing in the Constitution of the United States is
more extraordinary," he tells us, "than the failure of that instrument
to provide any means for getting rid of the judges of the Federal courts
except by the process of impeachment. In England, in Massachusetts and
in Pennsylvania, judges could be removed by the executive upon address
by both branches of the legislative body.[56] In none of these cases was
it necessary to allege or to prove any criminal act on the part of the
judge. In colonial days the tenure of the judicial office had been of
the weakest. In the royal provinces, the judges had been appointed by
the Crown and had been removable at pleasure. In the charter colonies,
the judges had been appointed by the legislature, and their tenure of
o