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Federalism, Separation of Powers, and Judicial Independence

       Federalist #78 highlights the importance of judicial independence, and the role that it plays in our nation’s system of checks and balances. Alexander Hamilton believed that the court needed to be independent in order to have the authority and ability to shut down legislation that gives the federal government extraconstitutional authority through the usurpation of federal power that is not constitutionally recognized. For example, if Article I does not give congress authority on a particular matter, that authority belongs to the sovereign states that make up the union. This is the purpose of the 9th and 10th amendment from the US Constitution’s Bill of Rights. If the Constitution doesn’t specifically give authority, it is reserved for the respective states.

One must remember that it was sovereign states that gave birth to the federal government and its authority, out of what our founders believed was a necessity to have a strong central government. This perceived necessity came about during the Revolutionary War, when our founding fathers realized that overall logistical capabilities, including the movement of supplies, material, and soldiers, were severely limited because there was no central authority to manage what they had on hand and where it needed to go. They saw how local government control in times of urgency made for a great deal of confusion in the midst of the chaos. The Articles of Confederation, was a rough draft preceding our constitution, but in this draft the federal government had little or no real authority, and was on hand only as an advisor to the union’s sovereign states. They were seeking balance, so the compromise was to give the federal government a degree of power and authority, while dividing that authority among three branches, using a separation of power. Along with this separation, the constitution would restrict overall federal authority and its reach, to act as one more layer of protection for liberty. The US Constitution places restrictions on the federal government, not on the citizenry. This was a radical new idea that was the basis for the American experiment, the idea that a just, moral society could effectively govern themselves through the election of representatives.

The Judicial Branch is given this independence so that it may exercise discretion based on understanding of the constitution, in cases where congress has overstepped their constitutional authority. However, we have seen in recent years the politicization of the Judicial Branch and the role that it plays in our system of government. Activist judges have made a habit of legislating from the bench, and using their judicial independence to legitimize and advance a social justice movement that manufactures what they refer to as “rights”. “Rights”, as we understand them here in America, come from our Creator, God Almighty. The danger here in allowing the government to create new rights, is the fact that the government can take them away just as easily as they granted them. We enjoy our rights, because we inherently claim them as we recognize that we are children of God.
In hindsight, it seems that the Judicial Branch was given too much authority in the form of absolute power. This authority was needed to make the system work, but ultimately the breakdown of our system has more to do with deteriorating societal conditions and a population that has forgotten what it means to have principles. The courts exist to keep congress honest, the legislative process in check, and prevent federal usurpation of power in instances where it is not constitutionally warranted. Judicial appointments were meant to be non-partisan, but they have become a political side-show. How could our founding fathers have foreseen this level of partisanship creeping into the courts? If the convention of states ever comes to fruition, and we have another constitutional convention in our time, this is surely an issue that will be at the forefront, when it comes to limiting the reach of federal authority.

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Jason Brown About Jason Brown

Jason A Brown currently works for a Department of Defense contractor at a clinic in Brandon Florida. He is currently in Pediatrics but has also worked Family Health. Aside from working full time Jason is also doing online classes part time with Saint Leo University pursuing a BA in Criminal Justice/Homeland Security. With a full time job, part time classes, a wife and 12 year old daughter, Jason still finds time to educate people on America’s founding document the US Constitution, through his writing, as it is one of his passions.