THE JUDICIARY AND THE NEED FOR JUSTICE. PART ONE

Dateline June, 2015. Each year at this time of year the United States Supreme Court comes out with its decisions.  Some of our court’s decisions grab the attention of the public and some are controversial. After a recent comment by a Presidential candidate that if the court decides in favor of marriage equality, he will not respect the law of the land, a brief review of the reasons for having an independent judiciary is in order.

I am but your humble servant. My purpose in writing this essay is not to claim any great wisdom but to bear witness to the wisdom of Alexander Hamilton. He wrote Federalist number 78, and in his letter to the people he reasoned why the Judiciary was important to be the third branch of government.

As you may recall, the topic of the Judiciary was part of debate on the ratification of the Constitution, to replace the Articles of Confederation. One perhaps forgotten aspect of the Articles was the absence of the third branch of government the Judiciary.

In ratifying the Constitution the framers and the people made the Judiciary a co-equal branch of government in our unique system of government, whereby the Judiciary became co-equal branch. The Judiciary became a check and a balance on the abuse of power by the other two branches of government.

We have three branches of government and power, the Executive, Legislative and Judiciary. Hamilton talked about how it was incontestable that the Judiciary is the weakest of the three departments of power. Montesquieu, famously stated, ” Of the three powers above mentioned, the judiciary is next to nothing.”

The reason for this weakness, as above mentioned,  is that the rulings of the court have to have the respect and acceptance of the people to have any force and effect. For the laws to have any power and effect, the states and the citizens of the United States must recognize the importance of abiding by the laws as handed down by the courts.

There is a very good example which illustrate the lack of power of the Supreme Court. President Andrew Jackson, once completely ignored the decision of the Supreme Court when the court decided in favor of the Cherokee nation, and forced the removal of the Cherokees from their lands. The court lacks the power to enforce their decisions. You are not likely to see a sheriff serve any papers on a Governor who by his or her actions have executed a man whose mental IQ is under a certain number, and try to hold that governor in contempt of court. Hamilton stated, that “there is no liberty, if the power of judging be not separated from the legislature.”

The court is there to protect the people from the excessive use of legislative authority and the excessive use of power by the President. Hamilton in Federalist 78, also stated that, ” no legislative act, therefore, contrary to the Constitution, can be valid.”  “The interpretation of the laws is the proper and peculiar province of the courts.”

“If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

Hamilton, in his argument for an independent and separate branch of government set the stage for the Constitutional designation of those powers and independence given to judges to make decisions that affect our daily lives.

Judges like all human beings make decisions that reflect the times that they live in. We may not like some of the decisions but what the court decides becomes the law of the land. If we are not to have anarchy, we must respect the court’s decisions.

It is contrary to logic and to the faithful execution of the laws of the land to have a candidate or a group of candidates announce before a decision is even made by the court that they will encourage citizens to not abide by the law or laws that are handed down by the court. One can understand that decisions that effect social behavior may engender emotions that reflect the passions of the moment. The passions of those that disagree are understandable, but the normal course of action should not be to encourage lawlessness.

If you do not like a decision of the court, we the citizens of the United States have been a way to address our grievances by establishing in our Constitution the manner in which to seek a Constitutional Amendment to overturn a decision.

The Dred Scott decision was such a decision that created many hard feelings because the court decided that a slave was not a person but rather a piece of property. It engendered the movement to have the underground railroad to move slaves across state lines to freedom.

This month will see a decision regarding marriage, and the issue of whether homosexuals are a class as protected by the equal protection clause of the Constitution. Those who are against marriage equality give as their justification for believing that marriage equality is wrong, the notion that somehow God is against gays being married. They hold that God’s laws are superior to man’s laws and thereby it is okay to refuse to abide by any court’s decision holding for the proposition that everyone has the equal right to be happy or unhappy.  They would deny a class of people their rights to pursue their own happiness.

We are a nation of laws and not a nation where one’s interpretation of God’s laws are superior to man’s laws. Their is a distinct difference between the right to pursue happiness as a class of people and the right to keep a human being in the chains of slavery.

Justice has a symbol, and that is that scales of justice where the balance moves from side to side during our time in history. Our framers to the Constitution set up for the first time in history a system of government that has encouraged through time the extension of the rights of our citizens. Now is not the time to encourage the disrespect of what a Supreme Court might decide. We must live by their decisions. You may disagree with a decision but one should question whether it is right to encourage disobedience. Our court system is there to protect our rights. The least we can do is to obey the law and fight to overturn a decision if you disagree with it.

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