This post is in response to the class discussion on the Judicial Branch of the government and its powers and authorities. I will argue that the power of the Judiciary rests in the Executive Branch.
The Judiciary has the power to review the constitutionality of laws made by the Congress, but this power was not explicitly given to the Judiciary by the Constitution. This concept and power evolved over time, and the consent of the governed actually gave the decisions authority. If another branch of government such as the Executive chooses to go against the decision by the courts, it can do so. This happened during the tenure of Andrew Jackson, and he simply ignored the courts order. Who enforces the courts order? The Executive Branch. If the Executive actually has the power to enforce or not enforce the laws, then the power of the law actually lies in the Executive. All laws are no more powerful than the actual enforcement of said laws. A law in the form the Judicial sees is abstract and powerless until the power and authority is vested in it by enforcement. What would a speed limit be without a patrolling police force? Without the threat and knowledge of active enforcement, no law has power at all.
The moral standpoint is different in that one should obey laws because they are laws, but this rarely works when applied to the mass populace. The Judiciary has a large amount of de jure power and authority, but the de facto authority lies in the Executive power. A law is no more than ink on paper without the muscle required to enforce said law.
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3 comments:
I think there are several important questions here. One is about when and where the power of judicial review achieved general acceptance. Another is the question of how executive power and judicial power were formally separated. Montesquieu, in his famous Spirit of the Laws, argues that the judicial and executive power are essentially one.
Still another is the question of how the framers and the framers’ generation understood the judicial/executive power. One place to look is the Federalist Papers, although keeping in mind that the Federalist Papers are part of a debate with Antifederalists over the merits (and very nature of) the Constitution.
Let me recommend reviewing Federalist 48 (Madison) http://www.yale.edu/lawweb/avalon/federal/fed48.htm
and Federalist 78 (Hamilton)
http://www.yale.edu/lawweb/avalon/federal/fed78.htm
This is a starting point for discussing constitutional theory and enforcement, and also for considering why the founding generation may have been concerned about executive power.
The question about authority is where does it lie in the Judiciary now?
One cannot conflate the Executive and Judicial Branches because they are separated under the Constitution, and act independently of each other. For example, the President cannot tell the Court which verdict to find, and the Court cannot tell the President whom to appoint to the Court. So, if they are not the same, then they must be separate.
If they are separate, then they can be approached in discussion as separate entities.
The main point is that the power of the Judiciary lies in the ones who choose to abide by the rulings made. If the choice is made to not abide by the law as interpreted by the Court, then the court is stripped of its power.
Fair enough. But your example already mentioned one overlap: the fact that the executive appoints members of the judiciary (with the advice and consent of the Senate) interlocks the two (or two-and-a-half) branches. The judiciary, in contrast, has no say over who will be President (whoops, forgot about Bush v. Gore) and neither the judiciary nor the executive can interfere with legislative elections (the House shall be the sole judge of its elections). So there may not be conflation, but there is an interlocking and overlapping of powers.
I am in agreement that power (and this I use as a term of art) depends upon acquiescence. It is a fascinating historical question when exactly Americans began believing that the Court's constitutional pronouncements were worthy of more respect than Congress's, or the President's. Keep this question in mind when we begin reading Dred Scott!
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