FREE ESSAY ON JUDICIAL BRANCH IN REGARD TO SEPARATION OF POWERS

JUDICIAL BRANCH IN REGARD TO SEPARATION OF POWERS

The Judicial Branch in Regard to Separation of Powers
The Doctrine of Separation of powers is that political power should be divided among
several bodies as a precaution against tyranny. The ideal is opposed the absolute
sovereignty of the Crown, Parliament, or any other body. The blueprint for United States'
separation of powers is laid out in the U.S. Constitution and expanded upon in the
Federalist Papers. The checks and balances of the US government involve the horizontal
separation of powers among the executive (the Presidency), the legislature (the two
houses of Congress themselves arranged to check and balance one another), and the
judiciary (the federal courts). There is also a vertical separation between the federal
government and the states. Defenders of separation of powers insist that it is needed
against tyranny, including the tyranny of the majority. Its opponents argue that
sovereignty must lie somewhere, and that it is better, and arguably more democratic, to
ensure that it always lies within the same body. The United States wanted to instate a
government structured in such a way that each branch was separate but equal. We will see,
however, that it is not always a black and white arrangement and that the judicial branch
has often found itself in the gray area of sovereignty.
The theoretical reasoning behind the need for separation of powers is laid out by Publius
(Jefferson and Madison) primarily in Federalist Papers # 49 -51. In American discourse
separation of powers is more of a name than an accurate description. In application, none
of the three branches is really separate from the others. This was the argument that
James Madison addressed in The Federalist, no 47. The Anti- Federalist charge was that
"The several departments are blended in such a manner as at once to destroy all symmetry
and beauty of form, and to expose some of the essential parts of the edifice to the
danger of being crushed by the disproportionate weight of other parts." Madison's answer
was that Montesqueiu, the "oracle" of separation, did not mean that "departments ought to
have no partial agency in, or control over, the acts of each other. He meant rather that
"the whole power of one department [should not be] exercised by the same hands which
posses the whole power of another department." The merit of "blending," according to
Madison, was that along with bicameralism and federalism it produced a safety net of
"checks and balances."
The founders were haunted by the monarchial system and this idea of checks and balances
was designed to cure the evils of that form of government. In addition, the Constitution
was an antidote for the "evils of democracy." The prime purpose was to protect vested
interests by such curbs upon the masses as checks and balances, especially judicial
review, and central government in which only the House of Representatives was to be
popularly elected.
Madison suggested in The Federalist that neither monarchy nor the masses were the
motivation for separation of powers but rather human nature, as they understood it. In
their view, mankind is led less by reason than by passion. In Federalist no. 15,
Alexander Hamilton put it: "Why has government been instituted at all? Because the
passions of men will not conform to the dictates of reason and justice without
constraint." Checks and balances and separation of powers are concerned with checking
both minority and majority "factions" that spring from man's self-interest. In order
constrain both majority as well as minority, the founders favored a less efficient
government checked and balanced against itself because it seemed safer than the risk of
tyranny in a more efficient system.
In the application of the theory of separation of powers to the United States, the US
Constitution clearly lays out the duties and jurisdiction of each of the branches.
Article I addresses the powers of the legislative branch. Section 1 states that ALL of
the legislative Powers granted should be vested in a Congress of the United States, which
consists of a Senate and House of Representatives. These powers include a number of
varying areas. These range from electoral powers, to issues dealing with the handling of
currency and taxes. More applicable to this discussion, however, are the powers in that
the Constitution lays out concerning the making of specific types of laws. Section 8[18]
empowers Congress "To make all laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by the Constitution in the
Government of the United States, or in any Department or Officer thereof."
Following the listed powers of the legislative branch, Article II tackles the area
concerning the executive branch, or the Presidency. Section 2 deals with the details of
executive powers. The President becomes, as he was intended, a major player in foreign
affairs. The first segment grants the President with the Position of Commander in Chief.
This includes the powers to grant Reprieves and pardons for offenses against the United
States, except in Cases of Impeachment. More relevant however, are the following segments
(Sec. 2-2 through Sec. 3) which more specifically portray the relationship between
executive powers and the legislative branch.
Section 2 states that the President shall have the power to make Treaties. It is
important to note her that he must do so "by and with the Advice and Consent of the
Senate. This is a check that is put on the executive branch by the legislative branch.
Again it states that when nominating and appointing Ambassadors, other public Ministers
and Consuls, Judges of the supreme Court, and all other officers of the United States,
the President must seek the Advice and Consent of the Senate. The President also has the
powers to fill up all Vacancies that might happen during the recess of the Senate. The
Constitution also requires the President to give Information, from time to time, to
Congress on the State of the Union. Finally the behavior of the President is to be
checked and held accountable by Congress through the impeachment process.
Finally, Article III deals with the judicial powers of the United States. It states that
the judicial powers shall be vested in one supreme court, and in such inferior courts as
Congress may establish. This becomes a check of Congress of the judicial branch. Judges
are to serve as long as they are considered to be in good behavior and that too is to be
monitored by the other branches. In addition the income of judicial employees is to be
determined by congress.
It seems as if the legislative branch has more power over all the other branches. That is
the way it was intended to be. However, in application the judicial branch, which was
intended to be the weakest branch, has become surprisingly more powerful over the years.
Judicial Review has been the mechanism which has enabled the judiciary to rise in power
and in turn check the other two branches more than the reciprocal.
Judicial Review is a distinctive power associated with the Supreme Court that is not
specifically mentioned in the Constitution. Chief Justice John Marshall in Marbury v.
Madison asserted the major principle on which judicial review rests by saying that, "[i]t
is emphatically the province and duty of the judicial department to say what the law is."
Through judicial review the Court most dramatically asserts its authority to determine
what the Constitution means. This power to interpret the law becomes the determining
factor in the most powerful branch of government. The argument against the ability to
exercise judicial review is that it gives judges the power to legislate. If the court
believes that a law is fundamentally unconstitutional it can rule so thus overturning
legislation. Many argue that the court was never intended to have this kind of power and
that it interferes with the will of the people to decide what is right and wrong through
legislation. This is when the court moves out of the black and white area and into the
gray. On the other hand, congress still retains the power to override a Supreme Court
decision by passing an amendment, but has only done so in four instances.
America's institution of judicial review gives the court enormous supervisory power over
the other branches of government. It permits the court to define whatever powers of
self-defense the other branches have against the judiciary. Therefore, overtime the
Supreme Court has acquired, in a way, the jurisdiction to regulate the separation of
powers as they see fit.