The American Judiciary has a long history—some of if not so proud—of interpreting the laws of the legislative branch against the varied state and federal constitutions, and of culling the power of the executive branch. This sort of check-and-balances system was built into the frame work of our government so that no one branch could become too powerful and exercise its power unduly either over the other branches or the American people.
Alexander Hamilton wrote in Federalist 80, that
It seems scarcely to admit of controversy, that the judicary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union;…Here Hamilton seems to be making a case for judicial oversight of the legislative branch; a mantle the United States Supreme Court has (and inferior courts) covered itself in when it decided Marbury vs. Madison in 1803 shortly after the constitution came into being. Marbury vs. Madison marked the first time the United States Supreme Court declared a federal law unconstitutional, when Chief Justice John Marshall held that it was the duty of the judicial branch to determine what the law is. His opinion in this seminal case established the power of judicial review—that is, the court's authority to declare laws unconstitutional. Since Marbury, state and federal courts have accepted this role as a natural and needed check on the legislative branch’s ability and propensity to pass laws which are clearly unconstitutional.
Hamilton wrote further in Federalist 80:
The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them?Again, Hamilton seems to be making a strong case for the judiciary to check the legislative branch by sitting in judgment of the laws they pass. And I agree with this logical argument; how else would the cause of liberty and equality be served? If the legislative, and to a lesser extent, the executive were left unchecked by the judiciary would tyranny soon take hold? I am of the opinion that it would. One need only to look at the aftermath of 9/11 for lessons is unrestrained legislative and executive power.
But the political and religious Right’s agenda in painting the judiciary in an unfavorable light has less to do with upholding the principles of liberty and equality for all, then it does with denying their fellow citizens those same rights they would hold dear to their own breasts. Those who lack even a basic understanding of the judiciary’s function in our society now seek to diminish its influence by placing conservative judges on various panels. The judges themselves are less of a threat to The People then the perception that the judiciary is doing irreparable harm to American society by upholding the various constitutions which form the foundation of our state and federal governments. Certainly no good can come from this unschooled view of the judiciary’s role in our society. Equal protection under law and due process of law are the bedrocks of our Republic and they should not be denied any citizen of our nation. The members of the judiciary are the protectors of those principles for all American citizens, not just those who proclaimed the God as their guiding light; or wrongly think that marriage as regulated by the states is a religious and not civil institution; or those who feel that God’s law should supersede mans law in the public arena.
A law professor once asked me, in speaking of the Supreme Court, what right do nine old men and women in black robes have to make rulings that affect the lives of almost 300 million people? My response was: if not them who, the people? They cannot be counted on in their self-imposed ignorance to meat out fair and equal justice as it is defined under our constitutional construct; they have proven this time and again throughout American history. If The People could fulfill this function, then what need of we, as a Republic, of a judicial branch? Surely the People could keep the two remaining branches of government in check.
Should we leave it to the legislative branch? No, they are the body creating the unconstitutional laws; the executive? No it does not have the constitutional mandate to interpret the law. So it must be left to the judiciary branch, whose members are schooled and practiced in the subtle nuances of American common law; only they can give a fair and just hearing to those seeking to avail themselves of constitutional protections…
The road we are traversing now, where ignorance is allowed to pervade and hold sway over public discourse on so important a subject is troubling and to me is further prove that our Republic is failing. Once we cease to understand the fundamental functionality of our own governmental components, how can We The People progress as a nation?