Constitutional
Complications UCSD Guardian Opinion 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.
Without Judges to Protect the
Rights...
February 18, 1997