Saturday, June 11, 2005

Altering the Balance

This is a column posted from the Grey Area printed in April issue of "The Forum" .

Recently, legislators have begun attacking the creditability of the judiciary. While the legislature has long attempted to control the third branch through constitutionally available means, the tactics have turned specifically toward changes in the law by activist judges.

The pejorative flies around capital hill denigrating the entire judiciary. Attempts by congressional leaders like Tom DeLay and Bill Frist challenge judicial operation in different ways, but the result remains the same.

Representative DeLay’s posthumous probe into the judiciary seeks to change the ethical standards, subjecting judges to more rigorous ethical obligations. One effect of this particular action has been to refocus the Senate ethics committee on the acts of its own constituents.

Conversely, Senator Frist seeks to end all filibusters raised by the Senate minority. The purpose is to end the current struggle over President Bush’s judicial appointees.

Regardless of the method, the concern remains the same. Theoretically, the judicial system operates as a check on the legislative and executive branches. Decisions contrary to the will of Article I and II branches have lead leaders to attempt to determine what check operates on the judicial system.

Though restraints on judicial decisions are not readily apparent, explicit checks on judicial power do exist. First, the systemic organization of the judiciary limits ability to review legislation because of its retrospective nature.

Second, legislators have the option of creating laws that overturn judicial decision.

Third, after the Marbury v. Madison decision, the role of the courts is limited to review of the laws and mandates by Congress and the President to determine if those decrees conform to the Constitution. 5 U.S. 137, 138 (1803).

While these three principals confine the ability of the courts to create law, the grey area provides wide latitude for the court to determine what fits within the ambit of the constitution. Fears of abuse of power are unwarranted here. The appeals process provides stability and balance within the system.

Further constraints placed on the judiciary will limit the power and purpose of Article III. These limitations will break down the current balance providing uncheckable power to the other two branches. In order to preserve the fa├žade of independence in the judicial branch, it must operate without further checks aimed at freeing up power in the other two branches. The equilibrium established by the founding fathers has lasted for over two hundred year, alerting that balance in underhanded and arbitrary ways to mold decisions of the court would pervert the purpose and debase the Constitution.


Bipartisan Congress has reached a settlment to avoid the so-called nuclear option that would amend congressional rules that would abolish the filibuster. As voters, we should be concerned that the majority in Congress is so willing to destroy the delicate balance the filibuster provides between the minority and majority. Standing on party lines remains the most dangerous part of the legislative process. Unless both sides focus on what is good for the people, not their campaign boosters, the dichotomy of bipartisanism will tear legislative government apart.

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