Sunday, October 21, 2007


Article III, Section I, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The third Article of the Constitution which established the federal court system of the United States and which I might add is the pattern for the individual state systems, has been at the center of much discussion and political meandering for the last several years.

In fact a term that is applied to this particular branch has evolved because of the controversy surrounding the courts and what their true authority as the third branch of government is. That term is "legislating from the bench." Referring to the practice by many of the lesser courts and a few instances from the Supreme Court where law was actually established from the courts through court rulings and not from the Congress which is the duly Constitutionally appointed branch of the government to create and in act the laws of the nation.

Of the first three Articles of the Constitution which establish the three branches of government Article three concerning the Judiciary is the most concise because the powers of the Judicial Branch are plain and simple. It is the responsibility of the federal courts to have judicial power over cases of law and to apply the law in accordance to the Constitution to each case as the enforcement of that law.

The Judiciary reviews each case that, "arises under the Constitution, " for the sole purpose of applying the law as the judges on the court interpret the law for that particular case. The Federal Court system consists of several different levels with the final level consisting of the Supreme Court which is the last stop of appeal from a lesser court judgement. Of course each level has the ability to deny a hearing to that court if the case being reviewed is seen to have been settled in accordance to the law by the preceding courts judgement.

One of the many misconceptions concerning the Supreme Court is the number of Judges appointed to the Court and whether that number is specifically established by the Constitution. The actual number is not stated by the Constitution and throughout our history has varied according to the appointments of the sitting President. In many instances when the number was larger the size of the Court was determined by how many appointment favors that the President was inclined to make. The Court has had as many as twelve Justices but the current number of nine began during the administration of FDR and has remained consistent since then.

The Judiciary because of its very conception and reason for existence is supposed to be non-political but again the historical evidence shows that many of the decisions of the court were based on the political climate of the time.

The Dred Scott decision of 1857 is one example which in today's political climate would be considered very unconstitutional. The Court ruling in the case established that all blacks were not nor ever could be citizens of The United States and it declared the Missouri Compromise of 1820 unconstitutional which allowed that all US territories were considered free. Thus creating slavery as , "law, " in all territories. This is but one of many decisions based on political climate and not the Constitution.This example also shows that the practice of, "legislating from the bench, " has been in existence throughout our history, but it would seem never as blatant or consistent as it is today.

The practice by the courts at any level of creating legislation or law through a particular court decision has become common place both at the state and federal level with certain courts becoming quite famous for the practice. The most obvious is the Ninth Circuit Court which is in San Fransisco, California who have continually established law through their decisions but fortunately when appealed to a higher court have had many over turned.

Nowhere in the third Article does it state that the Judicial Branch has the ability or the power to create law, establish legislation, or enforce a law that was not created through the proper Constitutional provision from the Congress which is the Legislative Branch.

Yet despite this very well defined Constitutional provision and the equally defined separation of Legislative and Judicial powers of the Congress and the Courts, it has become the practice that when political parties, action groups, lobbyists, powerful financial interests, etc cannot get legislation passed through Congress, they will in turn take the matter to the Courts. The Courts then will pass judgement on the case and establish through that judgement a particular law and rule that the law established by the court will be enforced as such, which is a direct violation of the Constitution and the Separation of Powers.

If the judgement by the court is in conjunction with defining the legality or lack thereof of EXISTING law established by the Legislative Branch whether state or federal then the ruling of the court is Constitutional. But as has been the case especially in recent years if the judgement is in conjunction with a legislative agenda that has not followed Constitutional procedure of passage into law by state or federal legislative branches then the ruling if deemed by the court to be, "law, " is unconstitutional.

The purpose of legislation being created by the elected Legislative Branch rather than the Judicial Branch was to allow representation in law by the people of the country. Judges are appointed and as such are not answerable to the people therefore the responsibility of legislating does not Constitutionally fall within their powers. Their sole and only responsibility is enforcement and interpretation of existing laws.

This strict Constitutional division of powers between the three branches of government defines our protection as citizens from the power of the central federal government. Establishing representation for the people as elected by the people. And allows us as citizens an avenue through the courts to legally question a law which we consider a violation our rights and our freedoms.

Ken Taylor