As a practicing attorney, I’m always interested in issue pertaining to the court system and the legal system. I believe that many people share my fascination based on the success of so many law shows on television and in books. Therefore, I wanted to address an issue of immense importance. An issue that impacts on our lives on a daily basis more than any act of the President or Governor or Mayor. An issue that really defines the lengths of our freedom. What exactly do we want the role of our courts to be in our “free” society.
Before we can discuss what role the courts “should” play, it is necessary to explore the vision of the courts our founders maintained. “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, 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.” Federalist Paper 78. “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the Judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Federalist Paper 47. These are just two, among others, that demonstrate the founder’s original intent to ensure that we would not succumb to tyranny through any branch of government, including the judicial branch. Reread these quotes from the Federalist Papers. Now compare these quotes with what you know about courts today. Compare these quotes with the hot topics of the day. Compare these quotes with some of the landmark rulings of our modern society. Let’s explore.
Roe v. Wade: a decision that legalized abortion with no act of the legislature
Citizens United v. FCC: a decision that approved of unlimited spending by corporations, labor unions and associations in elections and confirmed that “corporations” are people too.
Gun Control, gay marriage, and prayer in school
Also consider the lower courts that decide every day where children should live, who can adopt and raise a family, how long a person gets in prison for killing a person, and how taxes should be paid.
When you truly reflect on the context of where our court system stands today in comparison to what our founders considered in the very limited two quotes above, can we really reconcile ourselves to the view that the judicial branch is the least powerful branch of government?
If we lose sight of the proper role of courts, have we given up our liberty?
Just how important does judicial restraint become in today’s society?
I know that this post raises more questions than what it answers. However, the discussion must begin at our dining room tables. The discussion must begin at the lunch room table at work. The discussion must begin with ourselves. If we want to head off the growing tide abdicating our liberty to the government then it must begin with an honest discussion and debate about the role of our courts.
“A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” Thomas Jefferson 1774
Until Next Time,
David A. Standridge