ArtIII.S1.2.1.2 Good Behavior Clause: Historical Background

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Just as the phrase high crimes and misdemeanors for impeachments was borrowed from English practice,1 so too was the term good behavior borrowed from English law concerning the duration of a judge's tenure.2 Prior to 1701, the tenure of judges in England was established by the Crown, which often reserved the right to remove them.3 In 1701 Parliament passed legislation barring the Crown from removing judges, providing that they served Quamdiu se bene gesserint,4 and reserved for itself the authority to remove judges.5 The standard of good behavior and insulation from removal by the Crown was mirrored in the constitutions of many American colonies6 and was advanced by various proposals at the Constitutional Convention.7

The Framers considered the provision that federal judges maintain their seats during good behavior an excellent barrier against the risk of a legislature seeking to expand its power.8 Rather than serving at the pleasure of the President or Congress, the protection of judges' seats and salary for life ensured an independent judiciary that would not be unduly pressured by the political branches.9 Insulating federal judges from removal was crucial because the judiciary lacks the sword of the executive power and the purse of the legislature.10 Rather, the judicial power consists of the reasoning and judgements of its officers.11 As the federal judiciary is in some ways the least powerful branch of the government, ensuring judges' permanency in office was deemed essential to establishing an independent judiciary.12

Further, this independence armed the judiciary with the ability to defend and preserve a limited constitution against legislative encroachments against the rights of citizens.13 In the Federalist Papers, Alexander Hamilton argued that federal judges must guard the constitution and the rights of individuals against the possibility of laws that oppress political minorities.14 Likewise, federal judges must ensure that the law is applied justly and evenly to all citizens. If judges could be removed at will or were appointed for periodical amounts of time, judges would be tempted to consider popular opinion in their rulings to the detriment of the Constitution and the rights of political minorities.15


  1.  Jump to essay-1For more on the historical background of the impeachment clauses, see ArtI.S2.C5.1.2 The Power of Impeachment: Historical Background The Power of Impeachment: Historical Background; ArtI.S3.C6.1.2 The Power to Try Impeachments: Historical Background The Power to Try Impeachments: Historical Background; ArtII.S4.2.2 Impeachable Offenses: Historical Background Impeachable Offenses: Historical Background.
  2.  Jump to essay-2Hon. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. Colo. L. Rev. 1, 3 (1983). (The phrase 'good Behaviour' was copied by the framers of our Constitution from English law.).
  3.  Jump to essay-3Note, Judicial Disability and the Good Behavior Clause, 85 Yale L.J. 706, 720 (1976).
  4.  Jump to essay-4The Latin phrase is sometimes translated as so long as they conduct themselves well, Ginsburg, supra note 2, at 3 n.10, or during good behavior. See Judicial Disability and the Good Behavior Clause, supra note 3, at 709.
  5.  Jump to essay-5Act of Settlement, 12 & 13 Will. 3, ch. 2, § 3 (1700).
  6.  Jump to essay-6See, e. g., 2 Benjamin P. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1910 (2d ed. 1878).
  7.  Jump to essay-71 Records of the Federal Convention of 1787 21 (Max Farrand ed., 1966) (Virginia Plan); id. at 244 (New Jersey Plan); 3 id. at 600 (draft attributed to Charles Pinckney); id. at 621, 625 (Alexander Hamilton).
  8.  Jump to essay-8See The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  9.  Jump to essay-9Id.
  10.  Jump to essay-10Id.
  11.  Jump to essay-11Id.
  12.  Jump to essay-12Id.
  13.  Jump to essay-13Id.
  14.  Jump to essay-14Id.
  15.  Jump to essay-15Id.