On the Judicial Branch, continued
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When tremendous powers are entrusted to any person, or body of people, which in their execution, have the potential to bring about the oppression of the People, it is of the utmost importance that powerful and effective checks be formed to prevent its abuse. Perhaps no limitations are more compelling than those that emanate from a sense of responsibility to some greater power. Therefore, to ensure a free government, it is essential to fashion it in such a manner so as to ensure that all people who are involved with the government, are made accountable to some superior power for their conduct in office. This power of final responsibility should ultimately be in the hands of the People.
It has been the great effort of this series of papers to clearly demonstrate that our current system of federal government does not provide such a level of responsibility to the People; and because of this, we have too often seen abuses of power, and violations of our rights, by the central government of the United States.
Liberty only thrives when knowledge and attention are encouraged; and whenever the latter are repressed, liberty is eradicated. Laws incompatible with the freedom and liberty of a good and peaceful society can, through gradual steps, easily change the People into little more than slaves. For many decades, the American revolutionary tradition attempted to create an atmosphere in which the government would feel at least some level of responsibility to the people. This was done primarily through the ideal of being suspicious of centralized power; but, I fear, we have become too often inattentive to the actions of our government. The unfortunate result of this lack of attention has been such great usurpations of power that our nation's founders would no longer recognize the structure of the country they created.
It is a reality such as this, which ought to drive a people to reorganize their government in such a way so that it will act as a bulwark for liberty. Truly good government is generally the result of experience and gradual improvements. A proper execution of the laws, as well as an ethical, reliable and objective administration of justice, is essential to the preservation of life, liberty, and property.
With this, we proceed now to continue our examination of the judiciary department of our central government. So that we will have the ability to form clear and just opinions on this subject, I strive to not only examine the nature and extent of the powers of the judicial department, but also examine whether or not the courts are so constituted as to ensure that they can exercise them for the general good of the nation.
In the seventeenth number of these papers, it was introduced that the judicial branch of the United States has, in common practice, given explanations to the Constitution so as to favor expansions of power in the central government, as well as extensions of its own jurisdiction. The widely-accepted maxim that such actions by the judiciary are dangerous to our liberty is so obvious, that a full examination would be prodigal. That the tendency of the judiciary to support and promote centralized power, is evident from three primary considerations.
First, the Constitution itself strongly promotes such action.
Many, if not most of the articles in the Constitution which impart powers of any appreciable significance, are enumerated in very general, and even ambiguous, terms; and these are either questionable, indefinite, or require long explanations to decipher their actual meaning. The powers to raise money and maintain a military force, as demonstrated by trillions of dollars missing from the Pentagon budget in recent years, have been unlimited by anything but the discretion of Congress; the clause which gives Congress the power to pass all laws which are proper and necessary, gives the legislature the ability to do everything and anything, which in their judgment is best for the country; whether just or not. Such powers and clauses, as well as others not mentioned here, do not create an atmosphere in which the Constitution can be explained strictly, according to its letter, but rather, it allows a wide-ranging interpretation; because more power is implied than is expressed.
Second, the judges themselves are self-interested.
Not only does the Constitution justify the courts in leaning to this mode of interpreting it, but the judges are also interested in using this freedom of explanation. It has been a standard practice throughout history for people to pass on their offices, with all their powers and privileges, unimpaired to their successors. It has also been a standing maxim for ages, that every person or body of people, empowered with governmental office, is often ambitious of securing greater power. This same principle has often influenced the judicial branch to extend their own power and jurisdiction, and increase their own rights. This, in and of itself, has strongly influenced the courts to give such explanations to the Constitution, whenever it can possibly be done, as will increase the range of their own authority. Each and every increase of the power of Congress, as well as the judiciary, has eventually increased the power of the courts; and the personal distinction and importance of the judges is in direct proportion to the extent and greatness of the powers they wield.
Third, precedent is abundant, and is used to justify their actions.
It should be a well-known fact that the federal courts of the United States have, by their own authority, extended their jurisdiction well beyond the original limits given to them at the time of the founding of this nation. As time moves forward, and precedent of courts which have extended their own jurisdiction or approved power expansions by the other federal branches, becomes more abundant, would it not be expected that an increasing number of judges will also work to expand and further centralize power; when there is nothing in the Constitution which specifically forbids it? Since the Constitution does little to nothing to prevent judges from interpreting the law based on personal beliefs alone, should we not expect such actions to continue in perpetuity?
Our history and experience has shown us the dangerous tendency of the judiciary to expand the powers of each branch of the central government; and from the preceding three considerations, it is clear why our judges have been interested in extending the powers of the courts and the central government, and to explain the Constitution, as much as possible, in such a way as to advance and promote an expansion of power. Without an increased level of responsibility to the People, the potential that they will continue to do so appears most likely.
I will return to this topic in my next paper, on December 29, 2005. But, before leaving you to consider this, as well as the subsequent and daunting task of methods to rectify the many deficiencies in our federal structure, I urge you to keep in mind the following words of wisdom from Calvin Coolidge:
"There is no force so democratic as the force of an ideal."
In the spirit of liberty and prosperity,
Franklin
Original: Populist #18