Good Behavior

                The topic of discussion for this Constitution Monday comes from Article III, Section 1:  “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior….”  This clause is known as the “Good Behavior Clause.”  By including it in the Constitution, the Founders stated that judges could serve for life with “good behavior.”

                “One of the devices by which the kings of England kept the courts under their submission was controlling the compensation of the judges or summarily dismissing them if they issued decrees which were contrary to the desires of the Crown.

                “By giving judges a life tenure during `good behavior,’ the Constitution insured the independence of the judges, and by assuring the maintenance of their salaries, it removed them from the possibility of intimidation in case of unpopular decisions.”  (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 586.)

                “The Good Behavior Clause of Article III is the foundation stone for the independent judiciary in the American tripartite system of government.  In a system designed to protect against tyranny of both the majority and the minority, the clause is a constitutional contract with those men and women who serve in the judiciary – a contract that can be rescinded only through an act of impeachment.

                “In recent years, the Good Behavior Clause has been the subject of considerable academic debate due to its close association with the impeachment standard in Article II.  When the clause was drafted, however, there was little discussion of its meaning.  The Good Behavior Clause affirmed the life-tenure guarantee of federal judges – a fundamental requirement for the separation-of-powers doctrine that underlies the Constitution.”  (See Jonathan Turley in The Heritage Guide to the Constitution, p. 236.)

Two-Thirds

The principle for discussion on this Constitution Monday comes from Article I.3.6, "No members of the judiciary or the executive branch of government shall be convicted of impeachment charges unless there is a concurrence by two-thirds of the members of the Senate in attendance." This principle gives the accused person the right to protection from partisan politics because it requires the attendance of a substantial majority of the Senate.

Because there are currently 100 members of the Senate, a quorum could be constituted with 51 Senators in attendance. Two-thirds of 51 would be 34 so a President or any other executive or judicial officer could be impeached by a relatively small number of Senators. In reality, impeachment proceedings are so rare that there are usually plenty of Senators in attendance to provide for fairness. If all 100 Senators were in attendance at the proceedings, 67 would need to vote for conviction.