Which branch of government is the most powerful? The executive has veto power, the legislature has the power of the purse and the judicial branch enforces the laws.
The judicial branch is the only unelected branch of government. Two reasons for this: We are too incompetent to understand judge’s policies, and it is supposed to act as a check on the branch of the executive. Unfortunately, intention wasn’t enough to bring these hypothetic beliefs to fruition. Appointment of judges has led to more of an alliance between the executive and judicial branches than any sort of check.
I’ve only scratched the surface of the unintended and dangerous power the judicial branch holds. In 1803 the balance of power was detrimentally altered when Marbury v. Madison rolled through the Supreme Court Docket. It was then determined the Court has the power of judicial review – to review all federal laws and void them if found to be unconstitutional. This power had actually gradually mutated throughout the 18th century, but this case is most frequently cited thanks to Chief Justice John Marshall’s articulation of the doctrine of judicial review in which he declared that the Constitution implicitly grants the Court power to invalidate any law that, in the Court’s opinion, violates the Constitution.
In his Opinion, Chief Justice Marshall asserts that Article 3 of the Constitution recognizes the Court’s obligation to follow this doctrine. I’m not going to argue that the Court incorrectly interpreted Article 3, because it didn’t. It’s difficult to ever incorrectly interpret the Constitution, that’s why it’s an interpretation.
The problem was that Marbury was only the beginning. The Court wasn’t finished extending its powerful sphere. Just seven years after that landmark case, Fletcher v. Peck rendered a decision that applied judicial review to state law as well. This ruling blurred the line the Tenth Amendment had created defining the power of federal and state governments. With this ruling the Supreme Court had effectively secured for itself the role of chief arbiter and interpreter of the Constitution.
At first glance I thought judicial review would be incontrovertible – we would have the power to challenge laws that may be deemed unconstitutional, a major check on the other two branches. However, judicial review allows the respective branch to indirectly enact laws, clearly an unintended consequence of the doctrine. Also, think about the way Congress has abused the Interstate Commerce clause and trampled over states’ rights. Judicial review is MIA in this instance.
How does the doctrine coincide with a system of checks and balances? It doesn’t, but it was thought to be necessary in order to ground the Constitution and ensure its relevance.
As Chief Justice Marshall admitted, the Constitution doesn’t grant the power of judicial review to the Court. Still, the doctrine gives the Court an enormous amount of power, literally bestowing upon nine people the ability to veto both the executive and legislative branches of our government. My questions are: Did the Founders unintentionally and regretfully omit this allocation of power from the Constitution? Or did they have some amazing foresight which led them to be sure this influence would eventually associate with the judicial branch through a series of court cases? It’s easy to imagine the upheaval that would occur at the convention if such a policy were proposed. Thanks to the Virginia Constitution, which restricts judicial review, we know that Thomas Jefferson, George Mason and James Madison would have opposed it, labeling it an abuse of power. The Framers’ chief goal was to secure independence and create a stable democratic-republic. Moreover, there were already hints within the republic that judicial review could become standard constitutional law. Still, not denoting a proprietor whose duty, in fact obligation, is to be the sole interpreter of the Constitution is a major oversight to say the least.
I don’t want direct elections held for those who serve in the highest posts of the judicial branch. The most autonomous entities are those occupied by appointed individuals. I use the Federal Reserve as a prime example. This incredibly powerful subsidiary of our federal government has showed its willingness to cross the executive branch numerous times throughout the past three decades. Politics leads to promises, which turns into entanglements, morphs into corruption and finally results in ineffective policy. We don’t need that in the judicial branch.
Instead, I want an alternate check on this invented interpretation of Article 3. There are several ways to go about this, most of which were unintentionally created by the Court. Past Supreme Court cases are like gold: They are supposed to set precedent, and can often be used against the Court. Focus needs to be on reducing the power of the judicial branch, however it’s done.
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