What is the role of the judiciary within the mechanism of checks and balances as reflected in the Federalist Papers, and what are resulting strengths and weaknesses of the American Judiciary? Please be sure to include a clear account of what the Founding Fathers meant by “checks and balances.”
Through analysis of several of the Federalist Papers written by Alexander Hamilton and James Madison (47-51, 68), one can conclude that because of checks and balances of the American political structure, the judiciary, though it is the weakest branch next to the legislature and executive, is the most important department of government in regards to protecting the individual liberties of the people. The American political system’s departmental division into the judiciary, legislature, and executive, separates the powers of government as an institutional prevention of despotism of one of the branches. However, a complete separation between the branches would lessen the institution’s efficacy in preventing threats to liberty. James Madison comments on this in No. 48 of the Federalist Papers:
“…unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”
James Madison asserts that a complete separation of the branches, with absolutely no interaction between them, will not prevent a single branch from seizing complete power of the government. Therefore, checks and balances must be in place in order to provide a limit to the power of each branch. Checks and balances, established by certain roles of each branch, are meant to provide a way of preventing one branch of government from taking over and completely oppressing the liberties of the people. As written in the Federalist No. 51, “The different governments will control each other, at the same time that each will be controlled by itself.” Each branch holds a certain function which allows it to “check” or counteract a function of another branch, therefore providing a balance of power between the three branches. As a quick summary of each branch’s checks on the others: the executive branch has the power to appoint Supreme Court judges and veto laws made by Congress; Congress approves presidential appointments to the judiciary, can override vetoes, and can impeach judges and executive officers; the judiciary can determine actions of the executive or the legislature unconstitutional.
In regards to these checks, it may appear that the judiciary does in fact have the least power. The Federalist No. 47 supports this: “The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils.” However, the judicial branch plays an important role as the keepers of individual liberty due to institutional features of the judiciary, in the form of term length and judicial review.
This system of checks and balances allows the courts is to exert power over the legislature in the form of judicial review, which says that federal courts may declare Congressional or executive acts unconstitutional. Any unconstitutional act may then be considered invalid. This idea is explained by Alexander Hamilton in the Federalist No. 78:
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm that the deputy is greater than his principal…”
According to this passage, Congress gets its power from the Constitution; therefore, to go against the Constitution would be invalid, asserting that Congress holds higher authority than the Constitution, when in fact, the Constitution is the supreme law of the land. In regards to the judiciary’s role in this matter, Hamilton wrote: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law,” meaning that a judge’s loyalty is to the Constitution, therefore giving him grounds upon which to “judge” and declare actions of the other branches unconstitutional and against individual liberty. This principal of judicial review was first established in the Marbury v. Madison case of 1803 in which four judicial appointees were refused to be given office at the start of the Jefferson presidency, despite the fact that they had already been approved by Senate. The Supreme Court has also exerted this power over the legislature in the 1819 McCulloch v. Maryland case in which they declared it was unconstitutional for Congress to establish a national bank, and in the 2000 Virginia Tech Rape Case, in which the courts asserted that Congress could not supersede the rights of the states due to the Constitution’s federalist structure, which divided power between national and state governments. Therefore, in these examples and in Hamilton’s writing, it is evident that the Supreme Court has the advantage of exercising judicial review over the legislature and executive, safeguarding individual liberty.
Supreme Court judges are also unaccountable for their actions due to the length of their terms. Each person appointed to the position of a federal judge serves a lifetime term, unless impeached and convicted by Congress, which is unlikely, considering that only one Supreme Court judge has been impeached, though not removed, according to the website of the National Constitution Center. Elected officials, unlike judges, are accountable for their action due to their “periodic appeals” in the form of elections at the end of each term-terms last four years for the president, six years for senators, and two years for House representatives. As written in the Federalist No. 49, “The PASSIONS, therefore, not the REASON, of the public would sit in judgement.” In regards to Congress, this means that the House representatives and senators would be obligated to please the current desires of the people. If they do not appeal to the people, then they risk losing the election and therefore, losing their position. On the other hand, since the judiciary is not accountable in this manner, judges are actually permitted to use reason in making their decisions, rather than relying on passion. They are able to make decisions for the long-term well-being of the people without fear of losing popularity, as opposed to Congress members who must act with the short-term desires of their constituency in mind.
This feature of the judiciary is evident in the 1954 Brown v. Board of Education Supreme Court case in which racial segregation in schools was challenged. At that time, most white Americans in the south did not like the idea of allowing their children attend the same schools as black children. Most likely in accordance with their majority white constituents, the Congress in this period neglected to address segregation. However, the Supreme Court ruled in favor of what was constitutional rather than in favor of the public opinion, ruling that “separate but equal” is in fact unequal when it comes to education, according to the Supreme Court ruling available from the Library of Congress. Therefore, the judiciary may be seen as a way to give power to the “losers,” or those who can’t make progress in any other branch due to oppression by the majority. These minority “losers,” after failing to get a law approved in their favor by Congress, turn to the Supreme Court in hopes that the court will support their cause. Other examples of such cases in which the “losers” turned to the courts for help include the 1857 Dred Scott case, in which it was ruled that blacks are citizens and can therefore sue in court, and the 1973 Roe v. Wade court in which it was ruled that abortion cannot be outlawed in accordance with privacy rights, according to documents of the Constitution Society (http://www.constitution.org). In brief, the unaccountability paired with lifetime term lengths allows federal court justices the advantage of acting in their own accord for the good of the people without the fear of being removed from office on Election Day.
Although the Supreme Court does have these advantages, it is still the weakest of the three branches because of its sole ability to pass judgement on the other branches. This idea is confirmed in the Federalist No. 78:
“The judiciary…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 whatsoever. It may truly be said to have neither FORCE or WILL, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgments.”
Here, it is briefly noted that the legislature controls the national budget, and the executive has the role of enforcing laws. The judicial branch merely has the power of judging the other two, which is a large disadvantage. Although the courts may make a decision, they cannot even enforce it. This was demonstrated in the 1832 case of Worcester v. Georgia. In this case, the Supreme Court ruled that Georgia could not impose laws upon the separate and distinct Cherokee nation in Georgia; however, President Andrew Jackson refused to enforce the law, and instead, the Georgia government continued to suppress and drive out the Cherokee. As Hamilton clearly stated, “[The judiciary] is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches” (78). It cannot attack the other branches, and therefore, cannot protect itself except through judgement. However, this separation of the judiciary from the other branches is necessary in order to protect liberty. Hamilton quoted Montesquieu in the Federalist No. 78
“that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that liberty has nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
He explains that the judiciary, combined with the other branches would be a strong threat to individual liberty as a tyrant if its members pursued despotism. For example, hypothetically, if a single authority had to powers to make laws and judge them, than every law passed, no matter how unconstitutional it is, would have no opposing force to declare it wrong and invalid. And if the executive and judiciary were combined, the executive could use the army to his advantage without a force to tell him he cannot. Therefore, the judiciary as a single entity is the single most important feature of the American government. Hamilton agrees with this, “…as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security” (78). In its ability to declare an action unconstitutional and through its unaccountability, the judiciary serves as the protector of individual liberty, which along with life and the pursuit of happiness is one of the fundamental values upon which the American government was founded.
Reference:
- Hamilton, Alexander and James Madison. The Federalist Papers.” The Library of Congress THOMAS. 1995-2006. Library of Congress. Oct 2006 47-51, 78. “Landmark Court Decisions.” Constitution.org. 19 Feb 2005. Constitution Society. 11 Nov 2006
