I read with anticipated interest Mikie Kerr’s “Constitution Corner” piece entitled “All branches not created equally” (WHT April 15). Given Ms. Kerr’s volunteer activities in a group which distributes free pocket Constitutions, I was hopeful of a well researched and thoughtful discussion of our federal Constitution, particularly when time honored institutions are being savaged by extremists who have little, if any, appreciation for our history as a nation or the manner in which our government was intended to function over time.
Ms. Kerr’s column correctly and appropriately notes that we are not a democracy but a constitutional republic. Were this not so then a majority of the populous could elect representatives who would do their bidding by enacting laws which oppress a minority of their fellow citizens. Such a system has been historically described as the “tyranny of the majority” by such notables as John Adams, Alexis de Tocqueville, and John Stuart Mill. Even the Federalist Papers, the bible of many a conservative constitutional scholar, uses that phrase in describing “the superior force of an interested and overbearing majority.” (Federalist 10, first published in 1787.) Fortunately, that is not how these United States were intended to function.
However, Ms. Kerr’s assertions and conclusions regarding the three branches of our government are not entirely supported by historical fact, particularly the role of our judiciary when juxtaposed with the legislative and executive branches. While it is true that as originally enacted in 1787 our Constitution did not contain the specific language Ms. Kerr references — “endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness” (see Declaration of Independence, Adopted in Congress July 4, 1976) — the Preamble to the constitution expresses similar sentiments.
The first 10 amendments to the Constitution (ratified Dec. 15, 1791) were written by James Madison in response to calls from several states for greater constitutional protection for individual liberties. They are commonly and collectively referred to as the Bill of Rights and embody many of the “constitutional” provisions currently being politically debated.
While I agree, generally, with the theme of Ms. Kerr’s piece that “all branches not created equal,” I take exception to her conclusion that our Constitutional “blue print” (both “vertical and horizontal,” her words) has, perforce of verbiage and sequential appearance in that document, express the priorities of our Framers and the relative importance they placed on each branch of government. Ms. Kerr contends that the Framers necessarily “intended the federal legislative branch, as the representative of the people, to be the strongest branch of government” because its composition and function are first described in Article I, not II or III. A fortiori, “the judicial branch under Article III was intended to be the weakest and is the shortest of the three Articles because it is the furthest from the people,” and that this “order of strength is evident by the sequence in which the Constitution discusses each branch.”
The sequence of articles in our Constitution follows a natural progression for establishing an operating a system designed to govern by the rule of law. First, we needed to establish laws which enable and constrain conduct consistent with the principles set forth in the Declaration of Independence and in the Constitution including its own Preamble. A legislative body does just that – we call it Congress. But what should be its constituent composition? What authority should Congress possess and what limitations should restrain its actions?
Such matters are the logical first step in establishing a constitutional government. Hence, Article I and its detailed and somewhat lengthier provisions. Second, a government CEO is needed to execute the provisions of the Constitution. Indeed, the president must take an oath of office to “preserve, protect and defend the Constitution of the United States.” Among the executive powers reposed in the President by the Constitution are those attending his role Commander-In-Chief of the armed forces of the United States, and, subject to advice and consent, the appointment of ambassadors, other public ministers, consuls, judges of the Supreme Court, all other officers of the United States whose appointments are not otherwise provided in the Constitution, as well as additional appointive powers as the Congress may grant. Hence, Article II.
Lastly, but certainly not least, is the establishment of an independent judiciary essential in adjudicating disputes arising under the Constitution and the laws of the United States. Those include oversight over Congressional and well as Executive action. The role of the Supreme Court in our system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of judicial review has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a living Constitution whose broad provisions are continually applied to complicated new situations.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution. Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution. (Federalist 78).
Hamilton had written that through the practice of judicial review the Court ensures that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
Indeed, as Chief Justice John Marshall asserted in Marbury v. Madison (5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803), the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared.
So Ms. Kerr, I respectfully disagree with your ultimate conclusion regarding which branch of government is more equal than the others. History and logic suggests that the United States Supreme Court is the final arbiter of whether legislative or executive action comports with Constitutional authority. I will leave to another day your take on big versus small government.
Edward H. Schulman is a resident of Kailua-Kona