Constitutional Complications
Without Judges to Protect the Rights...

UCSD Guardian Opinion
February 18, 1997

Every conservative commentary piece that you pick up today seems to complain about the extent of government power. A considerable amount of the commentary seems to focus on how the judicial branch is "legislating form the bench," allegedly creating but entirely new areas of law without the consent of either the legislature or the executive.

These claims could not be further from the truth. Judges are merely doing their job, that is applying law and precedents that are already on the books in accordance with the Constitution of the United States.

This document and its amendments form the foundation of our entire government. Without them, it is likely that the United States would have fallen into anarchy long ago. The Constitution helps to protect the rights of every citizen, thus preventing majorities from exercising tyrannical rule over minorities.

While the Constitution is the cornerstone of our nation, it does not provide a solution to all of the nation's problems. We also rely on the other two branches of government -- the legislative and the executive -- to get things done. The Congress and the state legislatures pass laws and their executives enforce them -- within, of course, the limits of our supreme law, the Constitution.

The judicial branch is charged with defining the boundaries of the Constitution and striking down laws that do not abide by it. These boundaries have been defined by both the document itself and the precedents of previous courts.

Thanks to the federal judicial system, we have a 210-year-old Constitution that still has relevance today. Without a judicial branch, the Constitution by now would have become a powerless document with no effect on today's government. Without an enforced Constitution, Americans would find themselves subject to the whims of unchecked legislative and executive power.

Especially singled out for attack by conservatives have been decisions relying upon the 14th Amendment to the Constitution. But it is precisely in these decisions that the Supreme Court has made the greatest strides to protect the rights of all Americans. It is written within the amendment that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

That's quite a mouthful, and it is up to the courts to decide how to apply it in the modern era. Basically, if a state, or a majority of the voters, passes a law that unfairly abridges the rights of individuals, it is the duty of the courts to strike it down. The fact that a majority of the people voted for the law or the legislators who passed it does not matter. If any law abridges anyone's fundamental rights, it has no right to exist.

A good example of good judicial judgment is the landmark case Brown v. Board of Education, which struck down laws enacted by state legislatures that mandated "separate but equal" educational facilities. Brown restored the rights of minorities that had been unduly infringed upon by the majority. If ending segregation had been left up to the majority of the voting population, we would still have segregated schools today.

Only people who do not understand the proper role of the American judicial system rise up in protest whenever a law is questioned by the federal courts, as was the case with California's Proposition 209. Although the courts are merely looking into the constitutionality of 209, promoters of the proposition have denounced any involvement by the federal courts as illegitimate. However, when these people bewail the fact that the majority's will has not immediately prevailed, they are really questioning the authority of the courts to review any legislation.

Those who denounce judges as usurpers of democratic authority are wrong for two reasons. Our country is a republic, not a democracy. This should come as no surprise to those who paid attention in civics class. The United States has been a democratic republic for the past 210 years, but this fact is largely overlooked.

Also, the majority still has considerable freedom to decide the direction of our nation. Although the Constitution was designed to limit the power of majorities in the area of civil rights, it still gives government a lot of leeway to legislate and regulate.

There are, of course, ways to circumvent the power of the courts. Congress can place statutory limits on which kinds of cases the Supreme Court could review. In addition, decisions made by the Supreme Court can be overturned by passing a constitutional amendment.

In recent years, the Supreme Court has become the premiere protector of the rights of U.S. citizens. Many of its members have stood firm in their commitment to civil rights. Unfortunately, federal judges have faced allegations of "legislating from the bench" when conservatives have disagreed with their decisions. These conservatives are wrong. Federal judges are merely enforcing and protecting laws that are already on the books.

The federal courts work in a very methodical way. In order for the Supreme Court to act on a case, it must first be brought to the lower courts and work its way up the ladder. If the case reaches the Supreme Court, it must have some relevance on the current state of the nation. And if it has relevance, any decision handed down is bound to be controversial. But just because a decision is controversial does not mean that the court that issued it is "legislating from the bench."

In order to preserve the balance of power among the branches of government, it is important that we all remember what we were taught in elementary school: The Congress makes the laws, the president enforces them and the Supreme Court defines them, including the Constitution. All of these functions are important to our nation. If one of the branches should fail, our nation's government would be deprived of its foundation.

This is why the judicial branch is so important. Without it, our nation would be just another pseudo-democracy that abuses the rights and privileges of its citizens. Instead of criticizing the judicial branch, we should be thankful that we have judges who are courageous enough to interpret the Constitution even though the majority might disagree with them.