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The power of the judiciary

Albert Lairson

PS 1

Professor Mitchell


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.

Source: Essay UK -

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