Category Archives: Legal and Government Buzz

The Federalist Papers and the Judiciary’s Role in Government

Posted on by annandmeg

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 Constitution, published 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.

The Constitution and the Courts: Marbury vs. Madison

Posted on by annandmeg

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.

The Challenge of Illegal Drugs

Posted on by annandmeg

Meeting the Challenge of Illegal Drugs

Planes, trains and automobiles. What about submarines, buses and cargo ships? Drugs enter the United States through all these forms of transportation. Revenues from illegal drugs worldwide are estimated at $300 billion dollars. In the United States alone, estimated revenues totally $60 billion dollars. This is 13 billion dollars more than the budget of Michigan and 23 billion dollars more than the combined budgets of Kansas and Missouri. The wealth attributed to individual dealers is staggering; one Britain convicted of multiple drug related crimes, is reported to be worth $300 million dollars. He started life as a bouncer!

When my generation thinks of drugs, too many remember the comparatively easy summers of the 60’s and 70’s. If PCP, methamphetamine and cocaine were around, I never heard about it. Marijuana, the drug of choice on many college campuses, could be found in a farmer’s field or purchased from a college classmate. The hippie generation joked about twinkies, grew up, found jobs, raised families and seemed to leave drugs behind.

Fast forward 40 years. The issue of illegal drugs is serious business and we need to be serious about how we respond. The economics of dealing drugs at the local level are discussed by Steven D. Levitt and Stephen J. Dubner, in their book, Freakonomics, chapter 3, Why Do Drug Dealers Still Live with their Moms?The authorsstudiedstreet dealers, ie. “foot soldiers” and concluded that most live at home because their average earnings are below minimum wage for jobs in which the chances of being killed are 1 in 4 . Contrast that to vast sums of money are controlled by international cartels that receive the real profits from drugs. Where does that money go and how is it spent?

A very rough estimate is that annually $10 billion to $30 billion dollars is smuggled South of the border. That money is used to pay those who harvest and/or manufacture drugs; to pay those who transport and sell drugs; to bribes government officials, lavish lifestyles for the drug lords, and terrorism. Terrorism in narrower sense involves funding drug traffickers/terrorists in Afghanistan and throughout that region; terrorism in the broader sense includes the destruction of whole communities in the border towns of Mexico, as well as the violence in the drug communities of our cities.

Drug sales and use sap the life out of our communities, primarily in some neighborhoods within our inner cities. The slogan “an unarmed drug dealer is a dead drug dealer” is more than a slogan. Those engaged in the drug trade too often protect themselves, their drugs and their money with violence, placing themselves, their neighbors and their families at risk of injury or death. The fear of violence and the risk that children will become involved in the drug trade further traumatizes some communities. Inner city street dealers are, in this and all regards, both victims and perpetrators.

So, the question is, what do we do about it? I haven’t a clue. But in the next months I hope to focus my research on various related issues in the hope that I will at least gain a better understanding. I will let you know what I learn.

Global warming and the need for leadership – Meg’s research from 2008

Posted on by annandmeg

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 wrote this as part of my senior thesis at the University of Kansas in May 2008. The class was about the history of accidents, both natural and human-induced. I looked at a place in Greenland dubbed “Warming Island” that was visited by a U.S. delegation led by then-Speaker Nancy Pelosi and a group of representatives.

Congressman Emanuel Cleaver, the representative from the 5th District of Missouri (Kansas City area), was a part of the delegation to Greenland. In the two summers following his trip, I was able to intern in his DC and Kansas City offices. His ideas about global warming and the environment in many ways sparked my current interest in environmental health. He is so unbelievably passionate about bettering the world, it just naturally rubs off on anyone he meets. During his initial campaign for Congress, my granddad Mesle met him and worked on his campaign. Granddad still talks about how nice Rep. Cleaver was to be around, how he wears his love for his community on his sleeve, and always asks me to tell him hello.

I don’t necessarily mean to sound like I’m putting in my plug for Cleaver, I just think it’s important to understand where the inspiration comes from. He really has been a significant influence in my growing interest of balancing community needs with environmental needs, all while juggling the various issues of the world. I’d like to share an excerpt from my 2008 thesis about Warming Island in Greenland, and Rep. Cleaver’s commitment to community and environmental health. Please note, the following information is current as of May 2008.

Here you go.

 “Warming Island” in Greenland

The Greenland Ice Sheet (GrIS) is the second largest ice sheet in the world next to the Antarctic Ice Sheet. During Speaker Pelosi’s delegation to Greenland in May 2007, she noticed the rapid speed at which the ice is breaking off and melting. She learned the amount of ice breaking off in two days time would provide enough fresh water for all of New York City for an entire year. The delegation inspired other political officials to travel to the island, including several Senators, in July 2007.

Some scientists say the melting ice is being offset by the amount of snow accumulation during the winter months, but there is also a highly significant correlation within the last decade of temperatures in Greenland with the Northern Hemisphere. This correlation suggests that global warming may very well be emerging within GrIS in the present day. One man, who is a veteran arctic explorer, made a discovery several years ago that would change the visible perception of global warming.

Dennis Schmidt is an explorer who discovered “Warming Island” in Greenland in September 2005. It is an island on the east side of Greenland, about 400 miles north of the Arctic Circle, which was previously thought to be a peninsula. During an expedition to GrIS in September 2006, Schmidt commented that documenting the island was important because it is, “a very visual, very graphic example of climate change… maybe the best that exists in the world today.” Makers of this video documentary who traveled with Schmidt reflected on how scientists had been warning for years that the warming atmosphere would “wake up” the ice sheet and send hundreds of billions of tons of ice surging into the ocean, raising sea levels and drowning coastal cities. (To see a brief video documenting the island, click here.)

“I think a lot of people that will look at this will be fascinated because of its beauty, but also interested in it because it is a clear example of climate change,” commented Schmidt about the view of the landscape. In the documentary, the visible gap between the mainland and the now island appears to be at least several hundred feet. When Speaker Pelosi’s delegation travelled to the island in May 2007, they witnessed these effects first hand and realized the severity of global warming.


Cleaver’s commitment to the environment

To approach the issues surrounding global warming, Congressman Cleaver uses many different strategies. It is my understanding that neither oil companies nor delegates for non-renewable resource companies financially support Cleaver’s political office. He is therefore more flexible to speak openly about his concerns for the environment and what he believes to be the root causes for those concerns (such as oil companies drilling in the Chukchi).

When he addressed the Progressive National Baptist Convention in August 2007, Cleaver asserted to his listeners to make the earth’s environment a high priority. “There is overwhelming scientific evidence that the sin of materialism and greed are inextricably linked to the alarming rise in greenhouse gas emissions, and that, my friends, demands an urgent response,” he asserted. This comment followed a lunch conversation I had with him while in Washington D.C. during the summer of 2007. Cleaver believes there are many ways to attack the problems of global warming. One of those ways is through politics and legislation, and the other way is through religious promotion of possible solution. “If one Sunday, every preacher in the country said that everyone needs to use less gas, less water, recycle more, and care more about our environment, on Monday morning, everyone would be out buying a hybrid car.” He acknowledges that there is more than one way to approach global warming, and it is important to try to get through to people on multiple levels to ensure that the message about global warming gets across.

Protecting the environment and the vulnerable communities in the world from global warming is an important issue for which few people are up to the task. Congressman Emanuel Cleaver focuses on bringing together communities and protecting them from social and environmental injustice, which makes him a perfect candidate for provoking global unity. Cleaver is a man who is focused on solutions to problems surrounding struggling communities, whether they are black, poor, polar bear, or arctic ice. He believes in a balance within the social and spiritual spheres that keeps the world in harmony. When that balance is shifted, the world struggles, and Cleaver takes it upon himself to help bring the world back into balance.

– Meg McCollister, May 2008

U.S. role in world affairs, pt. 2: Courts as a Model and Trusted Protector of the Rule of Law

Posted on by annandmeg

If our role in the global community is changing, we need to decide in what ways we choose to adapt to the change.  Any vote taken in our family would support the belief that we follow the adage to “lead by example.”  Of course, leading by example requires that we project, for ourselves and to the world, the best of our core values.  Not surprisingly for us, our conversation turned to the importance of our judicial system and the fact we are a nation governed by the rule of law.

Pursuant to the Constitution our government is divided into three separate but equal branches.  The Executive Branch and the Legislative Branch are responsible for enacting our laws.  Their roles are generally well understood.  Less well understood is the role of the judiciary as the third equal branch of government.

Courts are responsible to enforce our laws.  They are accountable to the Constitution. Unlike members of the Legislative Branch, judges are not, and should not, be accountable to any individual segment of the community.  In our courts, every citizen is considered equal under the law:  rich or poor; individual or corporation; of whatever color, ethnicity or gender.

The challenge is to constantly protect the integrity of the judiciary and to preserve the requirement that judges are not answerable to a political agenda or viewpoint but instead enforce laws fairly and consistently.  So long as the courts are committed to this role, they create an environment of trust and confidence here and throughout the world community.  They support an environment in which individuals and businesses trust that they will receive fairness and confidence that laws will be enforced consistently.

Keeping politics and special interests out of the courtroom helps us to protect what Chief Justice William Rehnquist called one of the “crown jewels” of our democracy. Courts that demand respect for the rights and interests of all parties are consistent with a just society and enhance our image as a global citizen.  Is this what we should desire from our courts? Yes. Is this what we need as a nation? Yes.

A fair and impartial judiciary is essential to a fair and just society.  This is the judicial system we want for ourselves and as the model we want to present to the world.

U.S. role in world affairs, pt. 1: Zakaria’s Post-American World

Posted on by annandmeg

Meg was home unexpectedly this weekend.  It gave us the opportunity to chat
about many of our favorite topics.  We talked about what it means that the
U.S. is pulling our troops out of Iraq.  How does this impact our image
with friendly and not so friendly governments?  We talked about what it is
that makes us unique.  We talked about our court system, our educational
system, our Constitution and Bill of Rights.  All of these are subjects we
want to talk about in our blog. But as I was struggling with how to share
our ideas, I was reminded of a book I consider to be worth reading.  It is
Fareed Zakaria’s book titled Post-American World, written in 2008.  While
focused on the period before President Obama took office, it remains relevant
today.

In his book, Zakaria talks about the changing role of the United States in
light of the “Rise of the Rest,” particularly resulting from the explosion
of prosperity in China and India.  He describes this “rise” as the most recent power shift of the modern history. First, it was the rise of the west (Western Europe), then the rise of the United States. Now, it’s the rise of the rest of the world, something he describes as leading us to the Post-American World. He talks about our strengths and
challenges as we face this change.  He discusses the rich
contributions from our immigrant populations, particularly in terms of our
technological development, and our related continued leadership in various
areas of technology.  He addresses our role in diplomacy, and notes the
importance of compromise, strategic relationships and innovation.

A significant challenge to which he repeatedly returns is his concern that
we have what he refers to as dysfunctional politics, something that prevents us from
forming clear solutions to our internal economic and various other challenges.

Zakaria doesn’t have all the answers, and you certainly may not agree
with many of his opinions, but it is hard to read his book without grasping
some sense of the challenges we face as a nation in this ever-changing
world.

Arab Spring Meets Occupy Wallstreet

Posted on by annandmeg

We have watched and applauded the demonstrators who oppose tyranny throughout the Middle East. Doubtless, these demonstrations have significantly impacted events throughout that Region.

Now we are faced with demonstrations in U.S. Not since the 60′s have we seen anything like this: Occupy Wall Street. Focused on claims of corporate greed and corruption, the movement labels itself as focusing on the 99% who do not share the wealth and opportunities of the financial elite.

This movement is garnering increased national attention. To date there has been no loss of life. Hopefully, that will not change. Whether Occupy Wall street is the beginning of a new political movement is uncertain.

At least for the moment, the movement and the response to it is building and changing on an ongoing basis and is shifting the national dialogue. With no tyrants to depose can it, is it, in any way entitled to comparison to the Arab Spring. Time may tell.