While the
elected branches of the government obviously play a major role in protecting individual rights
in the United States, both the legislature, the elected body closest to the populace, and the
executive are too often too motivated by purely partisan or political considerations to
adequately ensure the preservation of individual liberty. Congress is, by definition and design,
a fractious and sometimes contentious body in which emotions and levels of experience vary too
greatly for the level of intellectual discourse needed to confront the most pressing issues of
the day. Yet, that is what it is expected to do to the best of its aggregate ability.
Also, the legislative branch of government (as originally envisioned) reflected the
realities of the newly established United States of America as it existed in the late-eighteenth
century. A collection of colonies/states comprising barely 3 million people and located
contiguously along the eastern seaboard is far different from the current collection of states
comprised of over 300 million people and covering a vast expanse stretching from Atlantic to
Pacific. There are 435 duly elected members of the House of Representatives and 100 senators.
Finding a consensus on most issues under these conditions is more difficult than the conditions
faced by the Founders in 1787, and even then, key issues proved intractablea situation that lead
directly to civil war.
The president of the United States is, of course, a
single individual elected by the country at large (through the exercise of the Electoral
College) to represent the nation as a whole. The nation as a whole, however, is too fractionated
and too diverse (which is a good thing) to allow for the emergence of a consensus on such
difficult issues as limits on individual freedoms like speech and assembly. Also, the executive
is every bit as political and partisan as is the legislature. That leaves the
judiciary.
Judges are viewed as repositories of experience and wisdom in the
practice of law, which involves considerable exercise in the interpretation of not just the
Constitution, but the thousands of laws passed since the countrys formation. While intellects
and levels of experience among judges across the nation vary widely (they are, after all, only
human), the parameters of their positions of authority make them ideally suited to the
preservation of individual rights. While most judges are partisan in that they belong to
political parties and/or view fundamental questions about the role of government and the meaning
of Constitutional provisions along certain ideological lines, they are, nevertheless, supposed
to be independent of day-to-day political machinations and are supposed to represent knowledge
and skill regarding the law.
Most importantly, the judiciary, unlike the
legislature and executive, does not make law. It may interpret statutes passed by Congress, but
it does not make and cannot ignore the law. Its role is to ensure that individual rights are
respected by the other branches of government, especially by the agencies of the executive
branch. That was the intent. In Federalist #78, Alexander Hamilton wrote the following regarding
the role of the judiciary relative to those of the other two branches of government:
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated from each other, the judiciary,
from the nature of its functions, will always be the least dangerous to the political rights of
the Constitution; because it will be least in a capacity to annoy or injure them. The Executive
not only dispenses the honors, but holds the sword of the community. The legislature not only
commands the purse, but prescribes the rules by which the duties and rights of every citizen are
to be regulated. The judiciary, on the contrary, has no influence over either the sword or the
purse; no direction either of the strength or of the wealth of the society; and can take no
active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely
judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of
its judgments.
As Hamilton went on to write,
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I understand one which contains
certain specified exceptions to the legislative authority; such, for instance, as that it shall
pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be
preserved in practice no other way than through the medium of courts of justice, whose duty it
must be to declare all acts contrary to the manifest tenor of the Constitution void. Without
this, all the reservations of particular rights or privileges would amount to nothing.
In short, the Judicial Branch of government is best conceptualized
and organized to protect individual rights. A system of checks and balances, we all learn, was
integral to the governmental structure envisioned by the Founders. No single branch was to
become all-powerful, especially that of the executive. Indeed, Article III of the Constitution,
which establishes the Judicial Branch of government, includes a provision seemingly completely
at odds with the notion of representative democracy: lifetime appointments of federal judges.
That provision, however, exists for a reasonto insulate federal judges from the aforementioned
political machinations that can adversely influence a judiciary too close to the elective
process. As such, judges are presumed to be sufficiently independent to resist the pressures
imposed on Congress and the presidency to follow the prevailing political winds into the
abyss.
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