The Federalist Papers and the Judiciary’s Role in Government

In recent election cycles, the courts have taken a bad rap.  They have been identified as elitist, activist, unpopular and even distrusted by the founding fathers.  I reminded myself it had been some time since I’d actually read the Constitution.  I decided to go “to the source” and re-read our nation’s original documents, to address at least one of the above issues, the opinions of the founding fathers about the  judicial system.  I will let the documents speak for themselves:

1)  In declaring independence from England, what complaint is made in the Declaration of Independence, signed July 4, 1776, about the relationship of King George and the judiciary?  “He [King George] has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.”

2)  How did the Constitution, adopted September 17, 1787, handle the separation of the powers of the legislative, executive and judicial branches of government?  The Constitution divides the powers of  government in separate articles as follows:

“Article I, Sec. 1:  All legislative Powers herein granted shall be vested in a Congress of the United States…

Article II, Sec. 1:  The executive Power shall be vested in a President of the United States of America…

Article III, Sec. 1:  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. …”

3)  What are the Federalist Papers and why do we care?  They are a series of 85 essays, originally titled  Federalist: a Collection of Essays Written in Favor of the New Constitutionpublished in 1788 to gain support for the passage of the Constitution. written to promote the ratification of the Constitution.  They have also had a significant impact on U.S. Supreme Court interpretations of the Constitution.

4)  Who authored the Federalist Papers?  Alexander Hamilton, James Madison and John Jay.  Among other roles in the founding of the United States, Alexander Hamilton served as a New York delegate to the Constitutional Convention; James Madison was the fourth President of the United States, was instrumental in drafting the Constitution and was the author of the Bill of Rights; John Jay was the first Chief Justice of the United States.

5)  Do the Federalist Papers address the role of the judiciary and the separation of powers?  Yes.   Federalist # 78 focuses on the relationship between and among the branches of government and the role of the judiciary as it relates to the interpretation of the Constitution.

6)  Why did the Constitution provide for a separation of powers among the three branches of government?   In the Federalist Papers, Alexander Hamilton explains …”there is no liberty, if the power of judging be not separated from the legislative and executive powers.” “The complete independence of the courts of justice is clearly essential in a limited Constitution…. [the courts have the duty] 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.

6)  Do the Federalist Papers describe the role of the judiciary in interpreting the Constitution?  Yes.  Federalist #78 explains that the “interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”  “…under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes.”

7)  Do the Federalist Papers express a distrust for the judicial branch?  No.  While the Federalist #78 acknowledges that “though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”

 8)  Why did the Federalist #78 describe the judicial branch of government as the weakest of the three branches?  The Executive branch not only “dispenses the honors, but holds the sword of the community.”  The legislature “commands the purse”.  The judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society…”

9)  What is the purpose of the provision in  Article III, Sec. 1 of the Constitution that Judges “shall hold their Offices during good Behaviour [essentially lifetime appointments]?  The Federalist Papers #78 explains that: “from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

10)  Did the founding fathers consider one branch of government to be superior to others?  No.  The Constitution was written to put the interests of the people, not the interests of government, first. The colonies declared their independence from England because of the tyranny of King George.  The separation and balance of powers is for the protection of people, rather than for some other purpose.  Federalist Papers #78 is clear that the Constitution does not  “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. Further, it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

11)  What other essays included in the Federalist Papers are of significance in determining the view of the founding fathers concerning the role of the judiciary?  Essay #1 describes the goal of the Constitution as focused on “whether societies of men are really capable or not of establishing good government from reflection and choice.” He and his co-authors along with other leaders including George Washington, believed that the Constitution represented a unique and important change in, and improvement over, prior forms of government.  Essays 4 and 33 deal with the Supremacy Clause set forth in Article V of the Constitution, but those are matters for another day!

Why haven’t I addressed the other issues raised concerning perceived flaws in the judiciary and individual judges?  It is reasonable to believe that people of good will can have differing opinions about individual judges, individual decisions and frailties in any arm of government.  I have no desire to enter that debate.  The humanity and imperfections of each of us individually and collectively are not up for debate.  But what I think is important to recognize is that the Constitutional framework was designed to include a separation of powers of the three arms of government because the founding fathers believed that it was in the best interests of the people to do so. The courts were not considered inferior or superior to the other branches of government.  The courts were, however, considered essential to the creation and fulfillment of our system of Democracy.


Happy Holidays from Shifting the Balance

Merry Christmas!

It is a wonderful time of year. We may not have snow in Kansas City, but holiday spirit abounds, and the joy of Christmas is in the air. After all the hustle and bustle getting ready for today, everything’s is now quiet. It has been a day of family, great food, and lots of laughter.

Now that the sun is nearly set on this beautiful day, we are settling in, building a warm fire and pouring a glass of wine. We hope you and your family have a Merry Christmas, a Happy Hanukkah and a joyous New Year.

Meg and Ann

Petaluma City of Lights – Driving Tour 2011

Meg has a J.D. in Urban, Land Use and Environmental Law. She focuses on maintaining the balance of community and environmental health, healthy lifestyles, and encouraging sustainable living.

The holidays are fast approaching, and one thing I have missed about Kansas City is the cold weather and snow reminding you it is almost time for Christmas. Well, Petaluma may be in the mid-50s this time of year, but the nights are still very chilly, and this town sure does know how to put on a holiday display! One of the local papers puts out a driving map every year of the entrants for the holiday decorating contest. This year there are 16 resident entrants and 47 business entrants.

On Monday evening, Jake and I packed the kids (our greyhounds) up in the jeep, grabbed the 2011 driving tour map and some hot chocolate, and headed out the door. We spent almost 2 hours driving around looking at all the houses, and we didn’t even get to the business entrants! For every official resident entrant, there must have been 3-4 houses that did not enter the contest. They were all amazing. Some yards had nativity scenes, some had entire towns of snow people. One yard down the street had a whole ensemble of Acme characters dressed up for the holidays, and they were 4-5 feet tall!

The last place we visited was by far the most impressive. Courtesy of the Barnacle family, this house was filled with moving reindeer, a christmas tree, hundreds of lights, a full nativity scene, an entire mini Christmas town, and a flying Santa. Unbelievable! The mini town they built in their window was amazing. It even appears they secured a radio frequency to play a particular Christmas song to go along with their theme.

It was a wonderful way to get in the holiday spirit. Even the kids were having fun sticking their heads out the window and saying hello to all the people doing the same tour. We may not have snow in California, but we still manage to have amazing holiday spirit!

The Constitution and the Courts: Marbury vs. Madison

I bet you didn’t wake up this morning thinking about U.S. Supreme Court decisions or even about the U.S. Constitution itself. Occasionally, though, it is good to reflect on the principles of our Democracy.  That brings me to Marbury vs. Madison.

The U.S. Constitution was signed in 1787.  Just 16 years later, in 1803, Chief Judge John Marshall authored the landmark decision of Marbury vs. Madison. In that decision, the Court for the first time declared a statute unconstitutional. The decision itself limited the Court’s power, finding powers granted to the Court in the Judiciary Act of 1801, to be beyond the powers included in Article III of the Constitution.  Article III provides in pertinent part:

Section 1:  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. . .

Section 2.  The judicial Power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made. . .

The Court explained it’s decision as follows: “the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument”.

The Supreme Court’s exercise of the power of Judicial review of statutory law is in sharp contrast to the British laws. The importance of such review was discussed by the founding fathers during the drafting of the Constitution.  Alexander Hamilton, whose writings  are seen as an important source for Constitutional interpretations, wrote in The Federalist #78, published in 1788, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

No case authority or Constitutional Amendment has reversed this important decision placing on the Supreme Court the responsibility to review laws enacted by federal and state legislatures for the purpose of determining whether such legislation is consistent with the Constitution.  Marbury vs. Madison remains the law of the land.

Searching for a Cause

Meg has a J.D. in Urban, Land Use and Environmental Law. She focuses on maintaining the balance of community and environmental health, healthy lifestyles, and encouraging sustainable living.

I am absolutely amazed at the different ways you can “give” to charities nowadays. Many people think the only way to be charitable is to donate money to a cause. While this is clearly an important piece of giving to charity, it is not the only way to help support your favorite cause or organization. My family has always been a giving family. My mother helps advise organizations, my uncle helps organizations create strategies, and my grandfather often writes a check to organizations he believes are in great need of financial support. I choose to donate my time. As a recent graduate, it’s certainly more affordable, but it also makes me feel like I’m an active part of supporting my favorite cause.

A few years ago, my husband and I adopted a “retired” greyhound. Our Lily has become such a joy, and she inspired us to volunteer with the local greyhound rescue group in Kansas City, called “REGAP” (Retired Greyhounds As Pets). After volunteering for a few Meet & Greets on the weekends, we then started fostering. Finally, with our 4th foster, we “foster failed,” which means we couldn’t let the little spaz go. Now Cousteau has been with our family for almost a year.

So this all brings me to the point of my title today, “Searching for a Cause.” KC REGAP found this great website where you can do web searches (sort of like Google), shop online, and locate restaurants. Meanwhile, every time you search or shop, you earn money for your designated cause! For example, if I want to search “restaurants in Petaluma,” I simply type it into the search box, click search, and I immediately earn a penny for REGAP just for clicking the search button! I know it doesn’t sound like a lot, but imagine how many times you do a web search in a day. Well, if you search 20 times a day, then you can earn $.20 every day for your cause. The shopping section also links you to stores who will donate a certain percent of your total purchase. Such stores include Apple, Amazon, Banana Republic, Nordstrom, and many more. Plus, they have a whole bunch of coupons. It’s really such a great idea for raising money! Here is a link to their site, so you can take a look at it and see if your favorite charity is signed up.


GoodSearch: You Search...We Give!

Happy searching!

Congratulations, Kansas City

Frommer’s, publisher of travel guides, lists Kansas City as one of the top ten travel destinations for 2012.  Others selected include such exotic locations as Bay of Fundy, Nova Scotia, Ghana and Chongqoing, China.

While neither exotic nor remote, Kansas City was selected based primarily on its ever expanding emphasis on arts and culture.  Frommers focuses on the recent completion of the Kauffman Center for the Performing Arts (described as one of the most technically advanced performance halls in the U.S.), the new
contemporary wing of the Nelson-Adkins Art Gallery; and the Kemper Museum of Contemporary Art.  It also identifies the College Basketball Experience interactive facility adjacent to the Sprint Center, the Negro League Baseball Museum and the Kansas City Jazz Museum that share space at 18th and Vine.  In addition to raving about these and other attractions, the article raves about Kansas City barbecue.

Those of us who live here, love Kansas City already and easily brag about our attractions.  It is nice to know that now a world-class expert on travel recognizes our city as a world-class destination.

Protests Then and Now–Protests of the 60s, about Peace and Love?

The protests of the 1960s, which continued into the mid-1970s focused on two issues: the unpopular war in Vietnam and the civil rights movements.  The purposes of the protests were clearly articulated and very specific.  Protesters opposed the draft, the war and inequality based on race, sex and class.

The protestors were often college students and young professionals.  They attended class, took exams, held responsible jobs.  On weekends and after hours they demonstrated.  While there were glaring exceptions to the norm, most protests were peaceful and most protesters went home to their own beds at night.  Despite being unpopular among parents, the police, and many educational and government officials, the response to these protests was generally reserved.

The deaths of 4 students at Kent State, May 4, 1970, at the hands of the National Guard, was perhaps the most tragic event associated with the peace movement.  The deaths of 4 African-American children in the Atlanta church, Sept. 15, 1963; the lynching of 3 civil rights workers involved in voter registration in Mississippi; involved in voter registration June 21, 1964; and the assassination of Martin Luther King, in Tennessee, April 4 1968, are the most often remembered deaths of the Civil Rights movement, but they do not stand alone.

Most demonstrations were peaceful.  Protesters marched, congregated in parks, on university campuses, and occasionally near military bases and government buildings.  They lit candles and bonded together.  They attended rock concerts like Woodstock and Cornstalk[1] where much of the music focused on peace, equality and empowerment.   But as much as memories of those who participated in those protests focus on commitment to love, peace, music and equality, some protesters turned violent.  Splinter groups, including the Weathermen, a faction of Students for a Democratic Society, developed radical agendas, called for violent revolution, became involved in criminal activities, took over university buildings and bombed banks and government buildings.

The Paris Peace Accords of 1973 ended U.S. military involvement in Vietnam.  All U.S. soldiers left Vietnam by 1975.  College campus calmed and the peace demonstrations came to an end.  The civil rights movement was transformed from protest marches to structured organizations over a period of time.  Cool heads would differ as to whether the protests caused the integration of schools, buses, restaurants, with the passage and enforcement of legislation.  However, there is no doubt that key legislation occurred almost simultaneously with the protests, including the passage and enforcement of laws such as Equal Employment Opportunity Act of 1964 as amended in 1972, which prohibits discrimination on the basis of race, color, religion, sex and national origin; and Title IX, which prohibits discrimination in education on the basis of sex.

It was a time of love and hate, peace and violence, equality and class/racial struggles; but the times they were a changing!


[1] Seriously, Cornstalk was a big event in rural Kansas.