THE POWER OF THE JUDICIARY
When the founding fathers of our country, and by that I mean the Federalists, were
creating the system of government for America, they knew that a separation of power would
be necessary to protect the American people from the evils of a monarchy or dictatorship.
In doing this, they created the three branches of government; Legislative, Executive,
and Judiciary. The plan was to have the Legislative make the laws, Executive enforce the
laws, and the Judiciary interpret the laws, and it was Madison's system of "Checks and
Balances" that would keep the three in check. No one branch would be able to exploit
it's power without the scrutiny of one of the other branches, it seemed to be the perfect
system. However, when the Federalists proposed this system of "Checks and Balances,"
they really didn't consider the Judiciary that much of a threat of power, and because it
wasn't considered a policy making branch like the Executive and Legislative, it really
wasn't thought of as part of that system. Basically, the Judiciary would make sure that
no law was unfairly enforced on somebody, and anything else would merely be a bonus. The
system of "Checks and Balances" would then be the Executive watching over the
Legislative, and the Legislative watching over the Executive. To be more specific it
would be Congress watching over the President and the President watching over Congress.
(The Federalist Papers, #51)
This system, as I mentioned earlier seemed to be the perfect protection against tyranny
of any kind, and in fact it is quite effective, but I feel the problem is in that the
Federalists didn't take into account that the Judiciary would in fact become a policy
making branch in itself, with the power to check any one of the other two branches just
as much as they would check each other. Robert Dahl wrote, "To consider the Supreme
Court of the United States strictly as a legal institution is to underestimate its
significance in the America political system. For it is also a political institution, an
institution, that is to say, for arriving at decisions on controversial questions of
national policy." (Dahl, Role of the Supreme Court Symposium, pg.279) The point here is
that proportionately, the Judiciary yields as much power and policy making capabilities
as any of the other two branches of government, and that the decisions made by the
Supreme Court are in fact equal in stature to Congress passing a Bill into law.
What Dahl is basically trying to say is that the evolution of the Supreme Court has made
it very involved in decisions concerning important policy issues of the American
political system. When it renders a decision on these policy issues, it is in fact
changing or creating new policy itself. Now to say that the Supreme Court is only the
highest legal institution of the United States would be doing a it a terrible injustice,
not to mention selling it extremely short on the credit it deserves for the job that it
is doing. The Supreme Court is without a doubt, a very capable and extremely involved
branch of government, equal in power to the Legislative and Executive branch, and well
adapted in the duties involved in the system of "Checks and Balances" that the
Federalists established so many years ago.
The founders intentions for the Judiciary Branch was to interpret the laws that the
Legislative made, and the document by which their standards would be set would of course
be the
Constitution of the United States. The Supreme Court would render decisions based on the
laws drafted into the Constitutions, and it would be asked to interpret them to the best
of their ability. Because of this expectation to "interpret", the Supreme Court has been
allowed to develop the power to change policy in America. The reason for this can be
explained by a great many examples, the biggest perhaps being the case of Roe v. Wade
where the issue of abortion took the forefront of the American judiciary system. In this
case, to ask the Supreme Court to interpret the law as best described by the Constitution
would be useless because the Constitution states nothing on the matter of abortion. So
what is the Supreme Court supposed to do in these types of situations? The answer of
course is to take the matter into their own hands and interpret the law as THEY see fit.
It is the only way handle a situation that the Constitution does not address. This is
exactly how the Judiciary becomes a policy maker, when it has to deal with a situation as
they see fit, to refute a law or to uphold a law is to deal with political policy in
America. When the Supreme Court carried out a decision on the Roe v. Wade case, it
succeeded in not only making abortion the right of a woman to decide on, but it also
succeeded in setting forth a precedent of policy making in America. This was a huge
national issue, perhaps one of the largest of it's time, and for the Judiciary branch to
arbitrate such an important issue was an enormous show of force.
What we must remember when we are thinking in terms of the Constitution is that the
framers of it made it deliberately vague for a number of reasons. One thing we must take
into account is that when the founders were drafting this document, a document who's
principles this country would be ran on for many years to come, they were in reality
trying to sell the idea to the rest of the American people. Not everyone was all smiles
about the fact America was going to be a centralized government, so not everyone was
happy about a Constitution for the entire nation. For this reason, certain issues that
would be very controversial at the time are purposely not included in the Constitution
because people at the time simply would not have stood for it. An excellent example
would be the issue of slavery, which isn't even spoke of in the Constitution. This is not
because the founders thought it would never be an issue, it was actually quite the
contrary. The founders absolutely knew that one day the issue of slavery would have to
be dealt with, but at the time of the drafting of the Constitution, when they are
essentially trying to sell people on the idea, it would not be a very prudent thing to
bring up.
Because of this vagueness, the Judiciary branch has been able to blossom into a
political force in our government. Countless decisions have been made where the use of
the Constitution was not an option, and interpretation was the only means of
deliberation. For these reasons, it is clear to see that the Judiciary branch has
established itself as a clear cut policy making institution, but how does it fair in
decisions involving the Executive or Legislative branches of the government. An
examination of the cases in which the Court has held federal legislation unconstitutional
provide an excellent answer to that question.
From the New deal to present, the Supreme Court has been active in dealing with cases
that involved federal legislation. One specific example that validates this point is the
issue of term limits. When Congress passed legislation allowing for the government to
set term limits on members of the House of Representatives, the Supreme Court was asked
to step in and rule on the fairness to do this. This was and still is a prodigious issue
among federal officials, particularly the Congressman that it is effecting. After
careful consideration and review of the Constitution, the Court found that Term Limits
were unconstitutional. It ruled that the individual states could not govern elections of
it's officials, so to say that if a Congressman was elected by the people ten times in a
row, let him stay in office that many times. What the people want the people get, it is
the only way to keep the system democratic. Of course federal representatives like the
President do have term limits, but that is do mainly to the range of his constituency and
power he has, and term limits only assure the protection from a dictatorship.
Nonetheless, the main point here is the Supreme Court made an important decision
regarding legislative policy, and proved that it too is an important policy maker, even
after Congress may have passed legislation. The system of "Checks and Balances" is well
in tact, with the Judiciary Branch making sure that policy and legislation is fair and
constitutional, and is shown through the decisions they have yielded. Countless other
examples exist to back up this claim, but it would be entirely too monotonous to go
through them all.
In conclusion, I feel we have shown that the Judiciary branch has evolved into an
equally powerful branch of government as the Executive and Legislative. Through the use
Constitutional interpretation the Supreme Court has proven itself to be an important
policy making institution in the American political system. I sustain that the founders
did not expect the Judiciary to become such a force in the policy making arena, but
considering the way they set up the Constitution, I do not think they would be
disappointed by the way the Judiciary has dealt with such controversial issues. It is my
understanding that the Judiciary is just as an important branch of government as the
Executive and Legislative, and that it has succeeded in the important duty of "checking"
them as well. With so many issues yet to be resolved, look for the Judiciary branch to
gain recognition as a policy maker, and to continue to uphold and interpret the laws set
up by the founders in the Constitution.
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