Legislative vs. Judicial

My Thoughts On: July 12th, 2007

With the legal battles like the Terri Schiavo case and the Defense of Marriage Coalition fight to ban gay marriage, people are red hot over "despotic" judges and "arcane" legislators. Good ol' PA takes a look. (Originally a part of my Campaign 2016 creative writing project)

The campaign trail is moving a little slow so I figured I'd offer a future President's look at some current troubles we've been having between two branches of our government, the Legislative and Judicial. But first, some background.

The ultimate foundation for all three branches of our government - Legislative, Judicial and Executive - is based within the Constitution. Together all three branches form the only proper form of federal government we were intended to have. According to each Article of the Constitution, different rules apply to the different branches... but why have separate branches in the first place? Why not place all power of government in one body to oversee everything? Wouldn't that be easier?

The Founders lived when older forms of government ruled the day, which had parliaments and kings to issue the final ultimatum in virtually every decision. Subordinate bodies and officials in government had little say in anything so their promises and enforcement decisions were often totally inconsistent and impractical to live by. Living in a colony ruled over by an arbitrary and despotic king, the Founders knew that when one body or a single person had all the power, laws became less consistent, more at the whim of the ruler, and taxes rose as liberties dwindled.

Separate branches of government exist today to prevent the rise of a sole ruling regime and to fundamentally limit the power that any single person or group of people can have in government. There are three ultimate forms of government tyranny, in the mind of the Founders:

Monarchy - the Rule of One.

Oligarchy - the Rule of the Minority.

Democracy - the Rule of the Majority.

While the Founders embraced Democracy as a tool of representation, they did not believe that the majority was fit to rule - there are simply some powers government should never have. Reasoned the Founders, all forms of rule which infringed on freedom was wrong, regardless of it's source or the numbers supporting it, and that was exactly what they wrote in the Declaration. Soon it came time to create a government model consistent with that belief, and the Constitution very much fills the part. In it, the same people who write the laws do not get to determine the guilt of offenders, the same who determine guilt do not administer the prisons or run the police/army, and the same people who enforce the laws them do not write them. A series of checks and balances were created letting each branch get special powers that can be controlled by the other branches, preventing their misuse, and allowing the majority to create a government that even the majority cannot misuse. Allowing for accountability, we must accept the result of this is that it creates a bit of inefficiency, which causes some of the problems we see today. Let's check out some of the more recent conflicts:

Gay Marriage

Since the day of the first marriage licenses, which were originally used to prevent interracial marriages, legislators have been using marriage law to complicate and further the integration of marriage and state. Forgoing my usual rant about the institution of licensing things that require no state approval in the first place (like marriage, literally a god-given right that the state has no right to prohibit), let's get straight to the beef of the matter.

Republicans, mainly the hardcore Christian Conservatives, prefer increasing social regulations, have been pushing very successfully for banning gay marriages by preventing gay couples from receiving marriage licenses. They realized that by redefining the wording of state marriage license laws to exclude gay people from marrying, that they can start to shut out gay couples from getting marital licenses, so the first thing the anti-gay marriage lobby did was go to the Legislative branch.

Now enter the Judicial branch and the Constitution. The Fourteenth Amendment comes into play, which reads (irrelevant material excluded)...

Amendment XIV of the Constitution, Section 1:

No State shall [...] deny to any person within its jurisdiction the equal protection of the laws.

What this means is a vast subject of dispute, and dispute is the Judicial system's middle name. In the Equal Protection cases, mainly decisions fighting off much of the racism that was started by the marriage license institution, effectively said that all states much protect it's citizens equally under the law... meaning the laws between states must be consistent and equally guarded. This meant interracial marriages from one state could pass over to another state and still be valid. When states started granting gay couples marriage licenses, the license would be valid in all the states, a requirement of the courts and the Fourteenth Amendment.

For legislators under the demand to ban gay marriage, this made things very difficult. Even if they were to overturn gay marriage in their state, gay couples could get a marriage license outside the state in drive-thru weddings and return as a legal couple, state laws be damned. Conservative legislators turned to their supporters and painted the picture of the despotic judges, who wouldn't allow the public to decide what is marriage and what isn't, and there was something of a point in the argument. After all, why should judges be allowed to decide what marriage is, isn't that the state overstepping it's boundaries?

What the legislators forgot to mention is that they were agents of the state as much as judges were, and they planned to write Defense of Marriage Acts so they could decide what marriage is or isn't. The Defense of Marriage Acts allow a state to not recognize another state's marriage laws, because the DOMA laws are worded in a fashion that makes it consistently - and equally - enforceable, judges presumably couldn't overturn it. Judges, however, have been balking the legislative efforts left and right in every ruling they can, to preserve their own powers to decide these issues. The feud has been raising the demand for the Federal government to get involved, to make a Constitutional Amendment redefining marriage, which even the Supreme Court couldn't overturn... questions of how they would choose to interpret it though, are another matter.

Right to Death/Life

The right for humane euthanasia, and assisted suicide, recently became an issue of Legislative vs. Judicial with the case of Terri Schiavo. A lot has been said about this recently so I'll sum it up quickly: Terri Schiavo was a married woman who suffered extreme cortial damage resulted from a cardiac arrest induced by bulimia, which rendered her in a persistent vegetative state where she presumably had no cognitive capacity (her brain had become a mass of cerebrospinal fluid and the only recognized operation was that which kept her organs functioning). Her body was kept alive via feeding tubes, and her husband, after 15 years of caring for his wife in this state (many of which he spent the greater part of his time caring for her, even training as a nurse to do so) decided her case was lost and got a court order to have her feeding tube removed so she could die naturally.

Schiavo's parents, however, still held hope of Schiavo's recovery (even after 15 years of their daughter being in this condition), and hired doctors to contest the condition. Twice the feeding tube issue went to court - Schiavo had the legal right to remove the tube if the medical evaluations were true - and twice the parents challenged the legitimacy of Schiavo's claims. The third time, however, was not the charm for Schiavo's parents... the judge ruled to support Schiavo's case based on the evidence it had collected and created a court order mandating it be upheld. Terri Schiavo had her feeding tube removed and presumably this was to last until she died of dehydration.

Schiavo's parents started a wave of negative publicity against Michael Schiavo, branding him as an abusive husband and calling the judicial decisions unjust. Many Christian Conservatives sided with the Schiavo parents believing it a religious offense if the woman was allowed to die by dehydration, and the public support grew enough to awake legislators. Legislators wanted to garner the support of their voters, and efforts were put into place to attempt to devise laws either to allow intervention or, as time progressed, to prevent this situation from happening again. These efforts were not successful, despite public fervor, and Terri Schiavo died after 13 days of having no feeding tube.

This hasn't been the first time that courts and the public have clashed over right-to-die issues, many states have had legal battles against assisted suicide, Oregon being the only state to legalize assisted suicides. The case of Dr. Jack Kevorkian, currently in Michigan prison for aiding those who wanted to die peacefully with humane euthanasia (all of which in terminally ill situations), is an excellent example of this. Judges ruled consistently on the side of Kevorkian in various murder cases brought against him, until the Supreme Court allowed state legislators to create laws to ban assisted suicide in their state, which allowed legislators to intervene with new law. This momentary cessation by the Supreme Court to state legislators did not stop the legal battles, but it did result in Kevorkian being convicted of second-degree murder for his actions to relieve a terminally ill Lou Gehrig's patient. The Federal government has consistently attempted to force the hand on this issue, which has again been characterized as one between judges and legislators who are conflicted over making legal decisions, as well as a public eager to push the decision one way or another.


Another legal hot topic, many judges have been protecting abortion clinics, abortion patients and abortion practices and studies from legal assaults by legislators attempting to outlaw or hinder abortion. Federal judges have had a great deal of say over what the Constitution and law says about the legality of abortion, allowing an angry public to label them judicial despots and dictators. Many legislators would shut down abortion in America if not for consistent pro-abortion decision making in the Supreme Court and state courts, with the broad capacity to decide what is Constitutional and how law should be interpreted, judges do indeed have a lot of say in abortion, effectively handcuffing legislators from making very fast or sweeping change on this controversial issue. Doing a quick search on google for "abortion" and "judge" or "judicial" should get you a quick perspective on how inflamed the public is over judicial say in the matter of abortion.

Inefficiency in Government - A Good Thing?

Checks and balances exist to prevent government from making sweeping changes on the whim of the majority, who elect a vast number of officials in government power today, but a lot of people hate that. In each of these examples an angry public dissents with the courts, and turned to the legislators to attempt to undo what they perceive to be judicial wrong-doings and "despotism". These conflicts are healthy for the people because it brings controversial decisions to light and impedes a rash decision from being quickly turned into an institution. But does that still mean it's a good thing? Tax dollars and people's lives sometimes weigh in the balance, after all.

The reason I say yes is because it inhibits government growth and tyranny. There is increasing popular demand to have the Federal government step in to make laws to undermine state courts and even talk of granting Congress the power to overturn Supreme Court decisions. This does not solve any of the actual social problems at hand, instead it creates an environment where we believe the solution to all problems lies in elected representatives. When the Judicial and Legislative branches clash, it results in individuals being awarded more liberty to make decisions unhindered by possibly unjust laws. Even if this is results in some unjust situations, we must recognize the process of preventing wholesale dictatorship by the legislative branch over the judiciary as necessary for the progress of a free nation.

As the historical battle between the Judicial and Legislative branches grows, many people turn to the third branch of government, which we didn't talk too much about here, the Executive branch, for arbitration. If we abandon checks and balances, the public demand for intervention from the Executive branch, such as by the President and governors, we will see the police and army become involved in these disputes. The problem here is that we cannot allow one branch to arbitrate the disputes of the other two any more than we can let one branch make all the decisions for the others. Public demand for this will rise as demand for greater government "efficiency" increases. The result will be a government without any judges or legislators to be held accountable should they make bad decisions in writing laws or interpreting them, a blameless authority. Instead we will have those issues settled by unchallenged Executive orders, with officers in place to ultimately supercede the authorities of each branch, which is a central flaw with the old forms of government we fought so hard to rid ourselves of. To allow a President or governor to make any final decision in conflicts between the Judicial and Legislative branch is to throw our entire nation to the lions. A government like that would be one no longer restricted the Constitution or written law because most of that could be subverted.

If you believe activist judges and pandering lawmakers are ruining this country, just imagine what the country would be like if the office of judge and lawmaker were combined. A truly scary thought, indeed, given the state of corruption it would engender. Please support division of our branches of government and believe in the power of a little inefficiency and accountability, whether you agree with a Judicial, Legislative or even Executive decision or not. It is one of the few reasons our government remains is more healthy and resilient to tyranny than others. As a future chief Executive officer, you have my promise that I will respect the Legislative and Judicial branches and the powers they hold, and that I too will fight with them, within the system, every inch of the way over every little thing, tooth and nail - and while it might be a very slow and inefficient way to change things, it's the definitely the best way.