Thursday, September 13, 2012

Government Presentation #1: An Analysis of The Judiciary Branch, as Proposed in the Federalist #78-84

My notes and handout from my first presentation for my American Federal Government class.


Presentation Notes:
I'd like to begin with a very famous quote. It that appears nowhere within the Federalist, but is nevertheless present throughout.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
This statement encapsulates the entire basis of our Union. We have rights. The government exists to secure them. That's the point. Out of these branches, the Judiciary does the most to secure and promote those rights, because they provide 'equal justice under the law' to every citizen. (Except maybe Dred Scott.)


In a democracy, all eligible citizens have a say in the decisions that affect their lives. In regards to the other two branches, citizens vote for representatives that work on their behalf, but they do not have an individual say on the measures taken by those representatives. In the judiciary, citizens can directly petition for their rights and concerns, making this the most democratic branch.

It seems as though the formation of this essential branch almost didn’t happen. The judiciary sector of the British government was very corrupt, and no provision was made for a judiciary in the Articles of Confederation. The Federalist essays addressed these concerns, and had this to say about the power of the Judiciary:

"The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
The Federalist listed a variety of potential problems, some ‘phantoms’ and some evident. To address these issues, a variety of limits and mechanisms were introduced. Most of these were intended to keep the Judiciary free from both internal and external corruption, which we will address as we review this branch of government.

Q.        What are the responsibilities of the Judiciary? Why do we even need one?
A.        Because the Judiciary acts as a check against Exec, Leg, & People, by:

·         interpreting the Constitution and all other laws of the United States, including
o   Cases of admiralty and maritime jurisdiction.
§  Barbary Pirates (More here!)
o   Foreign relations, including international treaties, and incidents involving non-citizens.
§  Ware v. Hylton: Fed treaty overrides Virginia law.
o   All other laws to which the United States is a party.
·         resolving conflicts between laws, including:
o   Disputes between the people and the federal government.
§  National Federation of Independent Business v. Sebelius: The Patient Protection and Affordable Care Act, Obamacare.
o   Disputes between the state and federal government.
§  South Dakota v. Dole: Permissible to withhold Federal highway funds to encourage/influence states to follow federal lead.
o   Disputes between states.
§  Kansas v. Colorado: Arkansas River water rights, over 100 years.
·         resolving conflicts between the Constitution and the people, including
o   Cases involving the injury of the private rights of certain classes of citizens.
§  Lawrence v. Texas: Texas anti-sodomy law overturned.
§  Loving v. Virginia.
o   Cases wherein the Constitution inhibits the happiness of the people.
§  New York v. Ferber: 1st Amendment does not protect child pornography.

Q.        Who will administer the Judiciary?
A.        The Leg and Exec, but very carefully.

·         Appointing members to a lifetime tenure, which will serve to:
o   Attract jurists with integrity and character.
o   Attract the most educated and skilled jurists, who have ample experience with both written law and case law.
o   Uphold the loyalty of the Judiciary to the Constitution, as opposed to the appointing branch or voters.
o   Contribute to the ‘independent spirit’ that is ‘essential to the faithful performance of such an arduous duty’.
·         Administering overall pay, wherein pay raises and decreases apply to all members, which will serve to
o   Disincentivise the Legislature from attempting to financially influence members of the Judiciary.
o   Provide members of the judiciary with enough funds to immune them from bribery.
·         Devising a system of checks and balances within the Judiciary itself, including
o   A separate and independent Supreme Court, superior to that of the Legislature and not subject to check by jury.
§  Separate and independent, unlike Britain’s House of Lords. The law should be interpreted by jurists, not by politicians.
o   A series of inferior courts in each State of district, competent to adjudicate matters of national jurisdiction within its limits, that are:
§  Ordained and established by the Legislature.
§  Separate from State courts
·         Whose judges are elected or temporary and thus subject to outside influence.
·         May be disposed to their own state, and not the nation as a whole.
§  Subject to check by jury.
·         Not allowed, but not disallowed; ‘valuable safeguard to liberty’.
o   Restricting the Judiciary to cases not involving areas of authority previously granted solely to the States.
§  To keep the Judiciary from encroaching on States rights.

Q.        What are the remedies for a corrupt or misguided Judiciary?
A.        Why, an entire list of things!

·         Insistence upon precedent.
o   Judges must show law or precedent to support their opinions. No ‘will over judgment’, or modern term ‘judicial activism’.
·         Checks by jury.
o   Lower courts can use juries!
·         Constitutional amendment.
o   The Judiciary isn’t ‘superior’ to the Legislative. The Judiciary can overturn the will of the Legislative, but only because of the Constitution, so it’s really the Constitution that is superior to the Legislative branch. Think the Constitution is wrong? Amend it!
·         The weakness of the branch.
o   No honors.
o   No ‘sword’.
o   No money.
o   No ability to prescribe rules.
·         Impeachment by the House and tried by the Senate, for criminal acts or on the basis of insanity.
o   ‘Good behavior’ is the standard, but it’s a bad standard, as it can be used to influence the Judiciary.

In closing, I think it is safe to say from this review of the particular powers of the federal judiciary; it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system.




Handout: The Judiciary Branch, as Proposed in the Federalist #78-84


Responsibilities of the Judiciary

The Judiciary will act as a check against the other branches and the people by:

·         interpreting the Constitution and all other laws of the United States, including
o   Cases of admiralty and maritime jurisdiction.
o   Foreign relations, including international treaties, and incidents involving non-citizens.
o   All other laws to which the United States is a party.
·         resolving conflicts between the laws created by the other two branches, including:
o   Disputes between the people and the federal government.
o   Disputes between the state and federal government.
o   Disputes between states.
·         resolving conflicts between the Constitution and the people, including
o   Cases involving the injury of the private rights of certain classes of citizens.
o   Cases wherein the Constitution inhibits the happiness of the people.



Administration of the Judiciary

The Judiciary will be carefully administered by the Legislative and Executive branches by:

·         Appointing members to a lifetime tenure, which will serve to:
o   Attract jurists with integrity and character.
o   Attract the most educated jurists, with experience in written law and precedent.
o   Uphold loyalty to the Constitution, as opposed to a branch, or voters.
o   Contribute to the ‘independent spirit’ that is ‘essential to the faithful performance of such an arduous duty’.
·         Administering overall pay, wherein pay in/ decreases apply to all members, which will serve to
o   Disincentivise the Legislature from attempting to financially influence the Judiciary.
o   Provide members of the judiciary with sufficient pay.
·         Devising a system of checks and balances within the Judiciary itself, including
o   A separate/independent Supreme Court, superior to the Legislature, not subject to jury.
o   A series of inferior courts in each State of district, competent to adjudicate matters of national jurisdiction within its limits, that are:
§  Ordained and established by the Legislature.
§  Separate from State courts, which are subject to outside influence.
§  Subject to check by jury
o   Restricting the Judiciary to cases not involving areas of authority granted solely to the States.



Remedies for a Corrupt or Misguided Judiciary

Injustice or error within the Judiciary can be ameliorated by:

·         Insistence upon precedent.
·         Checks by jury.
·         Constitutional amendment.
·         Impeachment by the House and Senate, for criminal acts or on the basis of insanity.
·         The weakness of the branch.
o   No honors.
o   No ‘sword’.
o   No money.
o   No ability to prescribe rules.
·         Impeachment by the House and Senate, for criminal acts or on the basis of insanity.


 

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