Monday, August 15, 2005

Role of the Judiciary

A religious rally in Nashville, TN turned into a rant against activist justices and criticized the courts of overstepping their bounds. (CNN: Religious rally attacks 'arrogant' judges). The argument against the power of the judiciary is worthy of consideration.

The US Constitution, while quite verbose in discussing the legislative and executive powers, is rather brief when it comes to the judiciary:

Article. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Constitution of the United States

There's really nothing in that section that appears to give the judiciary any authority at all over the interpretation of the constitutionality of law. In fact, the following clause in article VI implies just the opposite:

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The implication here is that the judiciary is bound by the laws implemented in the legislature and signed by the executive branch. It's a stretch to assume that the judiciary has the authority to strike laws on the grounds that they are "unconstitutional".

What we have seen over the course of the last several decades is an even greater interpretation of that ability by the judiciary, passing judgment on the constitutionality of legislation for which there is no mention at all in the constitution. Examples of this are the highly controversial Roe v. Wade decision and rulings by the judiciary on the gay marriage issue. Neither of those issues are mentioned in the constitution.

In any case, the message from yesterday's rally is clear and it is correct. The judicial branch has increasingly overstepped its bounds. As we seek nominees for the Supreme Court, it is important to look for one overriding quality. We need originalists on the Court. We need justices that will adhere to the original wording of the US Constitution. The document is not a living, breathing work that is constantly evolving. Rather, it is a document that is fixed in time yet provides a mechanism for amendment should the need arise. The judicial branch must adhere to that intent.


1 comment :

Alan Fraser said...

I disagree altogether that the Supes are overstepping their bounds. I contend they are forced into the position of legislators because of the spinelessness of Congress, particularly with regard to an issue such as abortion. I do not, do not, do not want to get into that topic here but simply note that it keeps going back to the Supes because Congress will not make any clear specification as to what is legal and what is not.