Christine A. Owens’ letter – “Constitution is complicated” (WHT Oct. 18) – accurately characterizes Mikie Kerr’s monthly column on the “Constitution” as more partisan than informative. Indeed, several months ago I took issue with Ms. Kerr’s April 15 column in which she argued 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.” Such simplistic ideation betrays either ignorance of the subject at hand or an attempt at partisanship. In either case, it falters under the lens of critical analysis. (See my column appearing in the April 19 edition of WHT – “Judicial branch protects all Constitutional Rights.”)
As I attempted to explain, Ms. Kerr’s assertions and conclusions regarding the three branches of our government were not supported by historical fact, particularly the role of our judiciary when juxtaposed with the legislative and executive branches. The sequence of articles in our Constitution follows a natural progression for establishing and operating a system designed to govern by 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 was needed to execute the provisions of the Constitution. The president takes 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, was the establishment of an independent judiciary essential in adjudicating disputes arising under the Constitution and the laws of the United States. Those judicial duties 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.
Alexander Hamilton and James Madison had emphasized 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.
I applaud Ms. Owens’ call for Ms. Kerr to identify her qualifications as a constitutional scholar.
Edward H. Schulman is a member of the California, Hawaii and United States Supreme Court Bars and lives in Kailua-Kona.