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.
|
No comments:
Post a Comment