For the second time in my Constitutional law course at Yale, I was asked to provide an essay answer to questions provided by the law professor. I thought that I would share this.
Question: Of the three branches of our government codified in the Constitution, the Judiciary comes last. Why did the Framers do this? Why did they perhaps consider the Judiciary to be the weakest of the three branches?
Question: Similarly, how and why has the Judiciary gained power over time? Do you think that it is prudent (wise) to give judges this increased power?
My Answer: (this is subject to peer review, which is currently under way, so I do not know whether I will get a passing grade for this. As my peers, perhaps you can offer an opinion.) 🙂
The Power of the Courts in a Time of Diversity
The judiciary’s role is by its very nature the weakest of the three branches. It’s role is not to make law, as is that of the legislature and the executive. The power to make law is left to the other two branches, so long as that law conforms with the Constitution. The judiciary merely interprets what has been enacted into law. The judiciary essentially follows the will of the other two branches by determining the spirit and letter of the law. The judiciary has in its power the discretion to declare as invalid any law that does not conform to the Constitution.
It is quite appropriate that some other authority besides the judges themselves appoint lower court judges, in order to avoid the corruption that follows closed ranks within specific orders. Favoritism and the appeal of money take root in such institutions. Judges might be picked because they were able to purchase the job, or because they married into the right family. The conflicts of interest immediately become pronounced/ This would give them complete control over the judiciary, creating a monolithic power structure that would ultimately be quite dangerous.
We are caught in a legal quagmire now because the framers of the constitution saw fit to create a secular state without the right of any one religion to impose its customs upon others. But this did not account for what is happening today. Today, we have very diverse cultures trying to establish common ground whose customs surrounding sex and the roles of men and women in society differ sharply. America was primarily populated by Catholics and Protestant Christians whose way of life and values were fairly harmonious and came out of common European origins. Now our nation is confronted with laws that are inconsiderate of the practices of Islam, the principle case in point, and are not compatible with fundamental religious and cultural views of that way of life. Their way of life is oppressive to us, while our way of life is oppressive to them. The result is that we are seeing more and more violence and distrust toward one another because of that basic incompatibility. Justices’ hands are tied, because they can only rule on the basis of Western law where issues involving abortion or having multiple wives might be involved.
What’s happening then today is that justices are asked to make rulings on issues that impact the religious views of some, if not all, of the people. Is abortion legal or isn’t it? Should same sex marriage be permitted? Is it ok to teach gender neutrality to school-aged children? Is it ok for the state to take children from parents who smoke pot? May a woman wear a hijab to work?
The power of the courts today are felt because they are in conflict with diverse cultural/religious positions in society..I don’t think the courts have grown stronger as much as they are simply exercising the power that was never fully expressed in a more monolithic culture. Diversity in America has grown, which has imposed upon the courts decisions about these matters that were not fundamentally overwhelming social issues in the past.
In addition, the failure to recognize the intersection between culture and religion has over-politicized the office of the judiciary because, however, it rules, it impinges upon religious or quasi-religious points of view either positively or negatively in a manner that conflicts at least in spirit with the Second Amendment in which “Congress shall make no law affecting the establishment of religion.” Secularism has also become a religion. And let’s face it. Ruling against certain kinds of religious doctrine comes out of secular ideology, typically, that has attempted to assert its own supremacy in the political world at the expense of a cultural sovereignty that goes unrecognized, The attempt to avoid religious doctrine in civil law has failed. Courts that rule on the constitutionality of a provision will interpret that law to the detriment of someone’s cultural or religious point of view. .
I believe that there is clearly a need for an Amendment to adjust the power of rulings, or the reach of the law, in its conflict with cultural and religious values. I don’t have the answer for this, because it is unquestionably a thorny and complex issue, but it needs to be addressed in order to avoid another civil war.