Friday, April 26, 2013

Article III - The Judiciary

Article III of the Constitution is remarkably short (and I shall attempt to keep this blog entry short, as I am not a long-winded lawyer!), considering the power it vests in the Supreme Court.  It runs only six short paragraphs, and the entirety of one paragraph was modified by the Eleventh Amendment (we will address that when we get to the Amendments).

Simply put, the Supreme Court (as it is now known - it was referred to in the generic, lower-case sense in the Constitution as simply "the supreme Court") was established to be the final arbiter in the interpretation of the laws passes by the legislature.  Justices were appointed to serve while on "good behavior", in other words, for life.  There was no specific number of justices to serve on the court required by the Constitution, and by law, it has been nine, though attempts have been made to change that number, most notably by President Franklin Roosevelt (read about it here).

The primary concern in establishing the judiciary, and having the justices appointed, not elected, was to do the best to ensure that the court would be independent of the whims of the voters and of the current president or Congress.  Their job was to be the final arbiter of the laws of the land, the ultimate court of appeal.  Since then, its powers have evolved to include the concept of judicial review, which is to say, the finding of certain laws Constitutional or not.  This has been a favorite tool of legislators of all parties to try to derail certain laws, most recently the Affordable Health Care Act (Obamacare).  This power of review, however, is not explicitly established by the Constitution, though the Framers did contemplate the idea, as expressed by Alexander Hamilton in Federalist 78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Thomas Jefferson, however, warned about a too-powerful judiciary, one that would "legislate from the bench", as the modern usage puts it:

"You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

Indeed, the courts are often criticized by people of all political persuasions as being "activist", or overstepping their bounds, especially when ruling against such critics.  Certainly, one can make a case that many of today's  laws came almost directly from Supreme Court decisions, notably abortion laws ("Roe v Wade"), de-segregation ("Brown v Board Of Education"), and the right to stay silent and have legal counsel ("Miranda v Arizona"), to name a few.

This Article also establishes the right to trial by jury, again limiting the power of individual justices or judges, and devolving power to the people to the greatest extent possible.  Additionally, the Article establishes the conditions for treason, and the procedure for trying such cases.

Perhaps none of the three branches of government has caused so much controversy over our history.  Is it because we, as voters, have virtually no control over this branch, as opposed to the other two?  We cannot replace Supreme Court justices in the next election, like we can with the president or Congress.  Laws may be changed from one Congress to the next, executive orders may be rescinded by succeeding presidents, but  it is rare that Supreme Court decisions are overturned, thus making its rulings far more permanent than legislative or executive acts.  The court works on the principle of stare decisis, which holds that previous decisions should be maintained, even if the current court would rule differently.  The decisions of the court can only be overturned by the court itself, when it rules on a similar case at a later time (for example, "Brown v Board" overturning "Plessy v Ferguson"), or by Constitutional Amendment, and even more rare occurrence (the 13th and 14th Amendments overturning "Dred Scott v Sandford").

On the other hand, is it a good thing that the court is not subject to the transient whims of the electorate?  Ideally, at least, the justices sit above the petty squabbling of the other branches and rule only on the law, not on emotions or whims.  We can debate whether in practice that has in fact happened, but the principle seems sound.  

Next up - Article IV: The States

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