January 20, 2012
In the Federalist Papers, Alexander Hamilton referred to the judiciary as the least dangerous branch of government, stating that judges under the Constitution would possess “neither force nor will, but merely judgment.” Yet recently, the courts have wielded great power, directing the President on questions as monumental as how to conduct war, and micromanaging the states concerning even the most minute details of local school and prison operations. What is the proper role of the courts?
"[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."- James Madison, Federalist 47
The Founders studied political philosophy and the rise and fall of nations throughout history. When confronted with tyranny on their own shores, they rebelled against the dangerous consolidation of power in the British monarchy. Through reason and experience, they recognized that government can threaten liberty by abusing its powers, and they sought to avoid this by separating powers in the U.S. federal government. They believed that this separation of powers, coupled with a system of checks and balances, would make “ambition … counteract ambition.” Rather than depending on officeholders to restrain themselves (which given the power of ambition is unsafe), or on rules set down on paper (which are too easily ignored), the Founders gave each branch authority to exercise, and an interest in defending its own prerogatives, and thereby limited the ability of any one branch to usurp power.
Accordingly, the Founders vested the legislative power (the power to make the laws) in Congress, the executive power (the power to enforce the laws) in the President, and the judicial power (the power to interpret the laws and decide concrete factual cases) with the courts. But even these powers were not unfettered. Federal courts, for example, can hear only “cases or controversies”: they cannot issue advisory opinions. The courts cannot expound on a law of their choosing or at the request of even the President himself, but must wait for a genuine case between actual aggrieved parties to be properly presented to the court.
In explaining judicial power under the Constitution, Hamilton noted that the courts would have the authority to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. If a law was contrary to the Constitution, then it was void. Not surprisingly, the Supreme Court agreed, famously announcing its authority to rule on the validity of laws—known as judicial review—in the case of Marbury v. Madison. In weighing the validity of a provision of the Judiciary Act of 1789, Chief Justice John Marshall declared that “It is emphatically the province and duty of the judicial department to say what the law is.”
"Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was."Attorney General Edwin Meese
July 9, 1985
But the Marbury Court did not claim that the courts possessed the exclusive or supreme authority to interpret the constitutionality of laws. The other branches of government are also legitimately responsible for interpreting the Constitution. The President, for example, takes an oath to support the Constitution, and carries out this oath by determining which laws to sign. While the President may sign or veto legislation for political or policy reasons, the President faithfully discharges his oath by vetoing legislation if he believes that it would violate the Constitution. If the law was signed by one of his predecessors, a President may engage in constitutional interpretation by choosing not to enforce it if he believes it to be unconstitutional.
Thus, President Thomas Jefferson ordered his Attorney General not to enforce the Alien and Sedition Acts because he believed that they violated the First Amendment. Jefferson did this even though some courts had held that the Acts were constitutional. Jefferson’s action is an early practical example of the President using his independent role and judgment to interpret the Constitution.
Members of Congress also take an oath to support the Constitution. Congress interprets the Constitution by deciding which laws to enact. Congress may (and does) choose to enact or reject legislation for political or policy reasons, but when its Members reject legislation that would violate the Constitution, they are acting in accordance with their oaths.
That is how our system is supposed to work. But over time, the Supreme Court has grabbed power by declaring that “the federal judiciary is supreme in the exposition of the law of the Constitution.” The Supreme Court has even gone so far as to declare that its decisions that interpret the Constitution are the supreme law of the land.
Unfortunately, the political branches have largely acceded to these bloated claims. For example, when Congress was considering the Bipartisan Campaign Reform Act—popularly known as McCain-Feingold—which imposed numerous restrictions on election-related speech, its Members delivered speeches acknowledging that provisions of the Act were likely unconstitutional. That should have ended the debate.
But some Members surprisingly went on to state that questions of constitutionality were for the Supreme Court, not Congress, to decide, and that Congress should pass the legislation because it was too important not to enact. This was a flagrant abdication of Congress’s role in determining the constitutionality of legislation.
Similarly, when President George W. Bush signed the legislation, he issued a statement asserting that he expected the courts to resolve his “reservations about the constitutionality” of provisions of the Act. This once again left the courts to answer constitutional questions that the President could have and should have decided himself. Thus, by the acquiescence of Congress and the President, the weakest branch has largely succeeded in its self-anointed claim of supremacy.
The federal courts have not only grabbed power. They have also changed how judges carry out one of the core function of the judiciary: interpreting laws. The proper role of a judge in a constitutional republic is a modest one. Ours is a government of laws and not men. This basic truth requires that disputes be adjudicated based on what the law actually says, rather than the whims of judges.
In determining whether a contested law is consistent with the Constitution, judges act within their proper judicial power when they give effect to the original public meaning of the words of the law and the Constitution. This necessarily means that judges acting in accordance with their constitutional duties will at times uphold laws that may be bad policy, and strike down laws that may be good policy. This is because judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.
In recent decades, judges have engaged in judicial activism, deciding cases according to their own policy preferences rather than by applying the law impartially according to its original public meaning. They have become enamored of ideas like “living constitutionalism,” the theory that the Constitution evolves and changes not through the amendment process set out in the Constitution itself, but as a result of the decisions of judges who supposedly serve as the supreme social arbiters. They have drawn on external sources like foreign laws when the outcome they desired did not comport with the original public meaning of the law under review.
"The danger is not, that the judges will be too firm in resisting public opinion … but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day."- Joseph Story
Liberal activist Justice William Brennan famously said that “With five votes you can do anything around here”—five votes being a majority of the Supreme Court. Living up to Brennan’s boast, the federal courts have awarded the federal government power to regulate matters well beyond its constitutional authority. The courts themselves have taken over school systems and prisons for decades at a time, created new rights found nowhere in the Constitution, whittled away at constitutional rights (like property rights) that they apparently dislike, and asserted that they have the authority to decide questions concerning how to conduct the War on Terror that are constitutionally reserved to Congress and the President.
The courts have increasingly intervened on what are properly political questions. They have thereby undermined the ability of the American people to decide important issues through their elected representatives. Not surprisingly, the courts have become increasingly politicized institutions, and the nomination and confirmation of judges has also been politicized.
The Constitution is resilient, and it provides its own mechanism for renewal. The President nominates, and the Senate confirms, federal judges to serve during good behavior. If America is to be again a country of laws, and not of men, the people must demand that their President nominate and Senators confirm only judges who will conform to the proper role of a judge, and rule based upon the words and the original public meaning of the Constitution.
Robert Alt is the Deputy Director of and Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.