January 03, 2005
An Independent Judiciary is Necessary to Ensure Freedom of All
It continues to amaze me how little our third branch of government—the judiciary—is understood by both the learned (who by virtue of education should know better) and the average American citizen. Granted most of the “activist judges” critics make their voices heard from the political and religious right, but that minority din is increasing in volume as more and more ill-informed citizens—as well as (amazingly enough—members of Congress take up the cause.
The American Judiciary has a long history — some of if not so proud — of interpreting the laws of the legislative branch against the varied state and federal constitutions, and of culling the power of the executive branch. This sort of check-and-balances system was built into the frame work of our government so that no one branch could become too powerful and exercise its power unduly either over the other branches or the American people.
Alexander Hamilton wrote in Federalist 80, that
It seems scarcely to admit of controversy, that the judicary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union;...Here Hamilton seems to be making a case for judicial oversight of the legislative branch; a mantle the United States Supreme Court has (and inferior courts) covered itself in when it decided Marbury vs. Madison in 1803 shortly after the constitution came into being. Marbury vs. Madison marked the first time the United States Supreme Court declared a federal law unconstitutional, when Chief Justice John Marshall held that it was the duty of the judicial branch to determine what the law is. His opinion in this seminal case established the power of judicial review — that is, the court's authority to declare laws unconstitutional. Since Marbury, state and federal courts have accepted this role as a natural and needed check on the legislative branch’s ability and propensity to pass laws which are clearly unconstitutional.
Hamilton wrote further in Federalist 80:
The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them?Again, Hamilton seems to be making a strong case for the judiciary to check the legislative branch by sitting in judgment of the laws they pass. And I agree with this logical argument; how else would the cause of liberty and equality be served? If the legislative, and to a lesser extent, the executive were left unchecked by the judiciary would tyranny soon take hold? I am of the opinion that it would. One need only to look at the aftermath of 9/11 for lessons is unrestrained legislative and executive power.
But the political and religious Right's agenda in painting the judiciary in an unfavorable light has less to do with upholding the principles of liberty and equality for all, than it does with denying their fellow citizens those same rights they would hold dear to their own breasts. Those who lack even a basic understanding of the judiciary’s function in our society now seek to diminish its influence by placing conservative judges on various panels. The judges themselves are less of a threat to The People than the perception that the judiciary is doing irreparable harm to American society by upholding the various constitutions which form the foundation of our state and federal governments.
Certainly no good can come from this unschooled view of the judiciary's role in our society. Equal protection under law and due process of law are the bedrocks of our Republic and they should not be denied any citizen of our nation. The members of the judiciary are the protectors of those principles for all American citizens, not just those who proclaimed the God as their guiding light; or wrongly think that marriage as regulated by the states is a religious and not civil institution; or those who feel that God's law should supersede man's law in the public arena.
A law professor once asked me, in speaking of the Supreme Court, what right do nine old men and women in black robes have to make rulings that affect the lives of almost 300 million people? My response was: if not them who, the people? They cannot be counted on in their self-imposed ignorance to mete out fair and equal justice as it is defined under our constitutional construct; they have proven this time and again throughout American history. If The People could fulfill this function, then what need of we, as a Republic, of a judicial branch? Surely the People could keep the two remaining branches of government in check.
Should we leave it to the legislative branch? No, they are the body creating the unconstitutional laws; the executive? No it does not have the constitutional mandate to interpret the law. So it must be left to the judiciary branch, whose members are schooled and practiced in the subtle nuances of American common law; only they can give a fair and just hearing to those seeking to avail themselves of constitutional protections...
The road we are traversing now, where ignorance is allowed to pervade and hold sway over public discourse on so important a subject is troubling and to me is further proof that our Republic is failing. Once we cease to understand the fundamental functionality of our own governmental components, how can We The People progress as a nation?
Great piece VEM
“Once we cease to understand the fundamental functionality of our own governmental components, how can We The People progress as a nation?”
As long as we are divided, we will not progress.
While one side brings violations to the forefront, the other side sits back, and vice versa.
The very people who screamed during the 90’s are now sitting silent.
Divided we will fall.
Absolutely. Just because the right perceives ‘activist judges’ advancing causes of the left, is no reason to retaliate with more activist judges to give some sort of counterbalance. Things would more likely spin out of control this way, with two sides fighting for some ideology, instead of upholding the constitution impartially. Nice article.
Posted by: AParker at January 3, 2005 05:21 PMGreat civilizations have been undone throughout history due to swings in public opinion and unwillingness to uphold and support the rules and laws that made that nation great. This activist judge movement is a major threat to America’s posterity as a great nation.
Great topic, Mr. Martin.
Posted by: David R. Remer at January 3, 2005 05:56 PMGood posting!
I found it interesting because several hours ago I read this article which describes how the Supreme Court has changed in the past 40 years.
Posted by: Troy at January 3, 2005 09:29 PMThe Constitution is short enough for any literate American to read in a single sitting. It was meant to be vague in some respects and was not meant to cover everything or regulate minute aspects of American life. The 10th Amendment makes this clear when it says that powers not specifically given to the Federal government are reserved to the states and the people.
I have never heard any serious person question the Supreme Court’s function of interpreting the Constitution. The question is whether or not particular judgments exceed a reasonable interpretation and/or actually create new law without particular reference to the document. A judge’s role is to apply the law, not to do what he thinks is right if the law does not include it. Balance is necessary among all three branches and courts are not always right. You recall that in Dred Scott v Sanford, the court decided that the Congress had no right to create a free territory.
A rough but effective way of judging fairness is turn around. If you think something is fair, how about if you and your opponent change places. Is it still fair?
People on the left end of the spectrum have usually been in favor of a less literal interpretation of the Constitution. Conservatives have usually been stricter constructionists. One reason has probably been that the left has been seeing things going more their way.
This is about to change. President Bush will certainly have the opportunity to extend the life of the conservative part of the Supreme Court and he may well have the chance to remake the court entirely. Beyond that, appointees by Reagan and the two Bushes will soon be predominant in the lower courts. Someone appointed by George W. Bush will replace every Carter appointee who leaves the bench in the next four years. I expect the political and religious right will find a lot less to complain about in 2008.
Jack, the Constitution is based on the concept of citizens being free to live, prosper, and pursue happiness in whatever ways they deem fit, unless due process of law is applied to their means.
Now that covers a very, very, very large range of ground. So too do the whole federal/states jurisdiction lines set out in the Constitution leave vast chasms of potential conflicts between the two in need of interpretation. In fact, with few exceptions, everything that exists today in the way of behavior, commerce, intragovernmental relations, law enforcement, technology, etc. that did not exist at the writing of the Constitution and its amendments, is subject to potential challenge in the courts.
We are not a letigious society solely due to percentage of award fees. Our letigious society was and is fostered by the very writing of the Constitution and its establishment of the judicial branch of government.
I disagree with your assessment that strict constructionist interpretation of the Constitution is a left - right issue. It has always depended upon whether interpretation benefits or hinders the left or the right on a given issue, that determines whether the left or right bleat about it for a time. There are numerous examples to go all around in the areas of civil rights, commerce, and tax regulation which demonstrate strict interpretation is called for by both the right and the left at various times on various issues.
Posted by: David R. Remer at January 4, 2005 04:45 AMThe judiciary was meant to be the weakest branch of government because it was the most undemocratic. Its sole power was to determine if a law created by the other branches was unconstitutional or not. The problem that I have with “activist” judges is not what they have ruled in practice, as I am pro-choice etc. I am against the usurpation of power way from democratic discussions that should take place in our society. Those on the left are extremely protective of the fallacy of the fundamental right to privacy that the Justices found in the penumbras of the constitution. If we wanted a right to privacy it is up to we as a people to create that fundamental right not 9 old men and women. Furthermore, I pose this question to all those pro-chiocers that believe that it is a fundamental right to be able to have an abortion: If Roe v Wade is overturned what is the worst that will happen? The answer is nothing will happen in the short term, the question will be up to individual states to craft how they want to deal with the issue. Is this a bad thing? Sure, some conservative places in the US will make it quite hard to get an abortion, but will things change in Massachusetts, or California? I think not. The benefit will be that for the first time the American people will be able to decide for themselves and we can begin to have a grown up discussion on the issue, instead of the name calling that we have now that merely give voice to the extremists on both sides.
Posted by: Mig at January 4, 2005 11:35 AMVEM - Nice piece. I don’t understand why you blame conservatives over liberals for abuses; perhaps because it’s the right’s “turn” to stack the courts.
I think the big difference between liberal and conservative jurisprudence is the focus on what the law is. A liberal would say that the Scott v. Sanford decision was wrong because it upheld slavery. A conservative would say that it was right because it upheld the constitution, and it was the constitution that needed to be changed, not the court. And that’s precisely what Republicans did: after the Civil War, a flurry of amendments changed the constitution to reflect what we all now agree is true justice. Generally, liberals see more space to act in the spirit of the law; conservatives want to follow it to the letter.
While it’s true that the justice system is often abused by both sides, the true losers in the evolution of our political system are legislators. Their authority as the sole lawmakers has been slowly usurped by both other branches. Bush’s vaunted Faith-Based Initiative was not based on any legislation. We have not fought a war since 1945, officially. Korea, Vietnam, Kuwait, Afghanistan, Iraq and all the others are just “conflicts”, because the Senate’s approval was never sought.
Likewise, school prayer, busing, and abortion-on-demand have all been decided by the courts. Whether you agree or disagree with these decisions, they reflect a usurpation of legislative authority by the judicial branch.
The balance, of course, has not always been twisted this way. President Andrew Jackson ignored the Court’s ruling on the Indian Removal Act with impunity, and intimidated the court so that it was silent on legislation for decades.
In our time, however, the judicial branch has plenty of power - perhaps too much. Maybe the solution to partisan meddling is to weaken the court, to pull it away from politics, so that who serves on it is of far less interest to the politicians.
Posted by: Chops at January 4, 2005 02:00 PMExcellent article, V. Edward.
I agree with you, but I’ve always thought that it wasn’t a good idea to give Supreme Court Justices lifetime positions - precisely because the judicial branch has always held the risk that it could be used by the executive and legislative branches to further their political (and now, religious) agendas.
I believe judges should be given no more than eight years as the length of their term within the court.
Sometimes justices, appointed and free from political fallout, just don’t behave as the appointer expects.
I have always believed that the courts are swayed by their times. What was just 100 years ago may not be just now. After all they are human, too.
Laws only overcome passion for relatively brief periods, but they do act as restraints and in that way they are good, I believe.
Now, If we could find a way to restrain legislative spending.
Posted by: Greg at January 4, 2005 03:05 PMMig—
You are fooling your self if you think that in the current religiously charged climate that American will be able to have a rational, intellectually engaging, and meaningful conversation about abortion. Whether or not the society does or doesn’t has less to do with the Supreme Court, then it does a basic need of most religious fold to tell others how to live their lives. Religious doctrine has no place in the public sphere and yet our laws are now being written by those who would see Canon Law supersede Common Law, and the Constitution replaced by the Holy Bible.
The Supreme Court did not fabricate the right to privacy out of thin air; there was a constitution basis for it. And I do not trust the state to formulate laws the do not violate the rights of its citizens to live free. They (the states) have proven time and again that they are unequal to the task.
V. Edward
Adrienne—
Federal judges are appointed for life so that they will remain above political influence. Could you imagine the U.S. Senate going through the selection process every year? They system is damn near broke now, your suggestion would break it entirely. Why limit their terms, if those of the legislative branch are not similarly limited? What advantage would you gain?
V. Edward
V. Edward:
“Federal judges are appointed for life so that they will remain above political influence.”
But they are not above political influence and we know this.
Look at what happened during the 2000 election - they told Florida to stop counting the people’s votes only because they had a majority of conservative judges. What they did was completely unconstitutional, as well as obviously motivated by a partisan preference as to who would be the winner of the election.
“Could you imagine the U.S. Senate going through the selection process every year?”
Yes, I do. Good government isn’t supposed to be easy. And btw, I think senators terms are too long, as well.
“They system is damn near broke now,”
Especially when we hear stories of Scalia going duck hunting with Dick Cheney. Or Sandra Day O’ Connor saying she wouldn’t retire (don’t know why she still hasn’t, since she seemed so eager to before) if Gore was elected.
“your suggestion would break it entirely.”
I think it would call much more attention to the selection of judges and make people more aware of their views - and perhaps even more importantly, how they might try to impose those views when it comes to interpreting constitutional law.
As you were saying in your article, most people don’t even understand the judicial branch - but if the topic were raised every eight years, I think their role would be discussed more frequently in the media and people would become more interested to know what they do.
“Why limit their terms, if those of the legislative branch are not similarly limited?”
As I said, I feel those of the legislative branch should be similarly limited - as a way to make them a bit less corrupt than they currently are.
“What advantage would you gain?”
I think that limiting the terms on Supreme Court Justices would make them less corrupt and more aware of the power of their position. And I think that the people would be much more likely to watch what those judges do more closely. I also think it would save the people of this country of having to wait until they die in order for certain things to be addressed, or to restore laws (such as Roe vs Wade if it is struck down, or issues surrounding Gay Marriage) which ensure true freedom, privacy, and equality in this nation.
V Edward
The Constitutionality of privacy is still not a settled issue. The penumbra idea is a little bit of a creation. Roe v Wade supporters like it, but the religious could impose their ideas as easily with the same justification. That is something to keep in mind.
Find privacy anywhere in the Constitution">http://usinfo.state.gov/products/pubs/constitution/”>Constitution if you can.
The abortion debate is hot precisely because of the way it was decided. If it went through the legislative process, compromises would have been made. There would still be weirdoes on both extremes, but most of the energy would have been sucked out of the debate.
Law, in the U.S., had only two legitimate sources: the Constitution and the manifest will of the American people. And the Constitution is subject to the will of the American people, so we really have only one source. You seem to be advocating something else. In some countries we have the will of God, but I don’t think you are advocating that for the U.S. What then?
Jack—
As far as I see it there are two sources of law in the U.S.: the Common Law; i.e. judicial precedent and black letter law that springs from the Constitution of the United States and of the many states.
The word privacy is nowhere to be found in the Constitution, I will concede that. But the constitution is a foundation for our laws, not a black letter law book. Isn’t the fundamental right to privacy a natural and desired outgrowth of a free society?
Find the fundamental right to marriage anywhere in the Constitution; it is not there, and yet the Supreme Court held in Loving vs. Virginia that all American citizens enjoy a fundamental constitutional right to marry whom we choose, free from unreasonable state interference.
Jack, privacy is in the Constitution as a concept in the due process language. The government may not enter your home without due process. What is a home if not a private domicile. The writers had the British invading homes in mind when writing the some of that language.
Posted by: David R. Remer at January 5, 2005 06:58 PM
