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Constitutional Republic

Judicial Branch

The responsibility of the judicial branch is to interpret the laws that are created by the legislative branch.  At both the federal and state levels of government a system of courts has been established to try all criminal and civil cases that may arise.  Judges preside over the various courts and interpret the laws during trials to determine their exact meaning and how they should be applied for particular cases.  In a jury trial, after interpreting the law, the judge will explain the law to the jury so the members of the jury can make a decision on the case based on the correct interpretation of the law and the facts that have been presented to them.  In trials that are conducted without a jury, judges interpret and apply the law to each specific case themselves.

When ascertaining the specific meaning of a federal law a judge also determines whether or not it conflicts with the Constitution and if it does it is then declared unconstitutional and becomes null and void.  At the state level a judge can determine a law to be in conflict with the state or federal constitution and be declared unconstitutional.  Some of the Founders viewed the judicial branch as the guardian of the Constitution.  Alexander Hamilton said, “The courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter [the Congress] within the limits assigned to their authority.  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 [the judiciary] 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.” [The Making of America, p. 571]

The United States uses the common law system of law.  It derived its use of the common law system from England after breaking free from the jurisdiction of the King when the Declaration of Independence was signed.  The primary characteristics of a common law system are the use of juries to determine the facts of trials and the use of precedent by judges to make sure cases with similar facts and circumstances are treated the same way.  Common law systems are predominately used in countries of English heritage or countries that were once colonies of England such as the United States, Canada, India and Australia.

The other prevalent system of law is the civil law system which is derived from the system of law that was used by the old Roman Republic.  A civil law system differs from a common law system in that juries are not used for trials and judges are not compelled to use a system of precedent to make decisions on present cases that have circumstances and facts similar to previous cases.  Most countries of Europe, except England use a civil law system.

Certain trials in the Unites States are conducted without using a jury called bench trials.  Bench trials are conducted similar to the way trials are held in countries that use a civil law system.  In a bench trial the judge interprets the law and facts of the case then makes a ruling based on his or her interpretation of the law.  In the United States bench trials are typically held for minor criminal cases or when the defendant waives his or her right to a jury trial.

The Supreme Court has ruled that the right to a jury trial must be guaranteed for the trial of all criminal cases (federal or state) where the defendant is subject to imprisonment for longer than 6 months.  For civil cases at the federal level the right to a jury trial is guaranteed by the Seventh Amendment where the value in controversy exceeds twenty dollars.  Bench trials can be used to decide civil cases where both parties of the case agree to this format.

Although the right to a jury trial for civil cases at the state level is not guaranteed by the federal Constitution most states do grant the right to a jury trial for civil cases in their state constitutions.  State courts typically reserve the right to a jury trial for any crime punishable by imprisonment, although this is not absolutely required by the federal Constitution unless the imprisonment is for longer than 6 months.

The court system of the judicial branch at both the state and federal levels are composed of trial and appellate courts.  Cases originate in trial courts, called district courts at the federal level, and are decided on at that level most of the time.  In a trial court the judge interprets the law for a case and then the facts of the case are determined by a jury or judge and if the defendant is found guilty the judge administers a penalty for a criminal case or a judgment for a civil case.  The decision of a case in a trial court can be appealed to a higher court, an appeals court, if it is believed that a legal error was made during the initial trial that affected the outcome of the case.  Cases in appellate courts do not allow additional facts to be added and do not involve juries.  In a court of appeals the record of the previous trial is reviewed by a panel of three judges with only the attorneys of the parties involved in the case present with the judges.  The appellate judges determine if a legal error was made during the initial trial and can reverse the decision of the lower court if it finds that an error was made during the initial trial.  Court decisions made on cases with unique circumstances and facts in an appeals court set a precedent for the lower courts in their district to follow for future cases that have similar circumstances and facts.  A case that was tried in a state court can only make an appeal to a federal court if it involves a federal issue such as the denial of a person’s constitutional rights.

The judicial branch of the United States (federal level) consists of one Supreme Court and several lower level, district and appellate courts.  The Congress is granted the power to create the laws that determine the number of judges in the Supreme Court and the structure and number of the lower level courts which provides a helpful check on the judicial branch by the legislative branch.  There are currently nine judges on the Supreme Court, one chief justice and eight associate justices.  Supreme Court judges and judges of the lower, federal courts are appointed by the president, approved by the Senate and hold their offices for life.  A federal judge is only replaced in the event of his or her death, retirement or removal from office as a result of an impeachment by the House of Representatives and a conviction by the Senate for treason, bribery, or other high crimes and misdemeanors.  Judges of state courts can be appointed or elected depending on the constitution of the particular state.  The term of state judges also varies from state to state.  The legislature of each state determines the number of trial and appellate courts and the number of judges in each court at the state level.

State and federal courts have distinct areas of jurisdiction over cases.  State courts handle cases that concern laws that were created by a state legislature whereas the federal courts handle cases that concern laws created by Congress.  Article III, Section 2 of the Constitution explicitly states the jurisdiction of the federal courts.  The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between citizens of different states; and between citizens of the same state claiming lands under grants of different states.  The Supreme Court has original jurisdiction for all cases that involve ambassadors, other public ministers, consuls, and those in which a state shall be a party and has appellate jurisdiction for all other cases.

Article III, Section 2 of the Constitution also requires that the trial of all crimes be by jury and that the trial of a crime must take place in the state where the said crime was committed.  The exception to this is for trials of impeachments which are conducted by the Senate.  Of all the checks and balances that the Founders placed in the Constitution to protect the rights of the people, the right to a jury trial can arguably be considered one of the most important rights of all.  There are two types of juries used for criminal trials; grand juries and petit juries.  In normal conversation, unless a grand jury is specifically mentioned the general use of the word jury refers to a petit jury.  Grand juries are used to determine if there is enough evidence against an individual to bring that person to trial.  Once an indictment is issued by a grand jury a trial for the alleged crime takes place using a petit jury.  A petit jury is a group of people (usually 12 for federal cases) that is selected to hear the evidence of a court case in order to determine the facts of the case and produce a verdict.  A verdict is a formal declaration of a jury’s findings on the facts of a case.  The members of a jury are typically people that live in the near vicinity of the defendant.

Patrick Henry once described whom he felt should be chosen to sit on a jury when he stated, “By the bill of rights of England, a subject has a right to a trial by his peers.  What is meant by his peers?  Those who reside near him, his neighbors, and who are well acquainted with his character and situation in life.”  (Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 3:579).

At the federal level juries are also used in civil trials.  This is not always the case at the state level since some states use bench trials for civil cases where a judge determines the facts of the case and then renders a decision based on the facts.  A civil trial is a trial between two parties, a plaintiff and a defendant, where the plaintiff claims a loss due to the actions of the defendant and seeks a legal or monetary remedy.  In a civil trial a jury is used to determine whether the defendant is guilty of the actions that caused the loss to the plaintiff and the amount of money, if any, the defendant owes the plaintiff to compensate the loss that was incurred.  The judge may also issue a court order as a result of a civil trial to prevent or compel an act of the defendant such as a restraining order.

In a criminal or civil trial, after both sides of a case present their arguments the judge will typically give instructions to the jury that inform the jury of the judge’s interpretation of the law and how the law applies to the facts of the specific case.  The jury will then retire for deliberation to decide amongst themselves the facts of the case and afterwards vote to determine the outcome of the case and produce a verdict.  For federal trials a jury must be unanimous in order to convict a defendant.  In all but two states, Oregon and Louisiana, a jury must be unanimous in order to convict a defendant.  In Oregon and Louisiana a person can be convicted by a jury with a 10 to 2 vote.  Although this is considered controversial by some people, the practice was upheld by the Supreme Court in 1972.

Unfortunately the effectiveness of juries in protecting people’s rights have been diminished in recent years as judges no longer inform them of all of their rights as juryman.  When properly informed, juries provide a critical layer of protection for the people.  They are the last means of defense to protect citizens against unjust laws or against an overly aggressive and unjust prosecutor.  In a jury trial the actual judges of the case are truly the jury members themselves, the person with the official title of judge is merely just a referee that is bound to specific rules governed by law.  Judges today no longer inform the jury that they have the right to determine the law as well as the facts of the case.  Most judges now explain to the jury that the judge is responsible for interpreting the law and the jury is responsible for determining the facts.

Removing the responsibility of determining the law and how it applies to a particular case from the jury lowers the degree of protection that a jury can provide the people from abuses in government.  In 1794, during the very first jury trial of the Supreme Court of the United States the jury was instructed by the judge, “. . . it is presumed, that the juries are the best judges of the facts; it is, on the other hand, presumed that the courts are the best judges of law.  But still both objects are within your power of decision.”  The important point to be made here is that all it takes to insure that a citizen is not robbed of his or her rights is one member of the jury to vote “not guilty” to the alleged crime or civil suit.  A member of a jury can never be punished for voting a particular way in a trial.  If a member of the jury believes that a law is unjust that person not only has the right to vote “not guilty” that person has the DUTY to vote “not guilty”.

A libertarian, political philosopher named Lysander Spooner once wrote, “Government is established for the protection of the weak against the strong.  This is the principal, if not the sole motive for the establishment of all legitimate government.  It is only the weaker party that lose their liberties, when a government becomes oppressive.  The stronger party, in all governments are free by virtue of their superior strength.  They never oppress themselves.  Legislation is the work of this stronger party; and if, in addition to the sole power of legislation, they have the sole power of determining what legislation shall be enforced, they have all power in their hands, and the weaker party are the subjects of an absolute government.  Unless the weaker party have a veto, they have no power whatever in the government and no liberties.  The trial by jury is the only institution that gives the weaker party any veto upon the power of the stronger.  Consequently it is the only institution that gives them any effective voice in the government, or any guaranty against oppression.”

Although Article I, Section 1 of the Constitution clearly states; All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives, the judicial branch through a practice called judicial review in effect is able to make new laws by declaring laws created by the Congress and state legislatures unconstitutional.  Some people consider the process of judicial review itself unconstitutional because the powers of judicial review are not specifically listed in the Constitution.  While some people argue that the practice of judicial review is a necessary component of the system of checks and balances that hold together a constitutional republic others will argue the exact opposite position and contend that judicial review is destructive to the system of checks and balances as it makes the judicial branch the dominant branch.

Judicial review started back in 1803 as a result of a Supreme Court decision that was handed down in the case of Marbury v. Madison that happened during the presidency of Thomas Jefferson.  Jefferson defeated the incumbent, Federalist Party candidate John Adams in the presidential election of 1800 and took office on March 4, 1801.  During the lame duck session of the outgoing Federalist controlled 6th Congress the Judiciary Act of 1801 was passed which added a significant number of federal judicial positions which were then filled by appointments made by John Adams and approved by the Senate.  John Marshall, the outgoing Secretary of State of the Adams administration was not able to officially commission a few of the appointed judges by the time the Jefferson administration took over.  When Thomas Jefferson took office he ordered his new Secretary of State James Madison not to fill the remaining appointments.  One of the appointments was William Marbury who then petitioned the Supreme Court to force Madison to fill the appointments per the Judiciary Act of 1789.  The Judiciary Act of 1789 granted the Supreme Court original jurisdiction over writs of mandamus.  In 1803, the Supreme Court under Chief Justice John Marshall concluded that the Judiciary Act of 1789 conflicted with Article III, Section 2 of the Constitution which specifically states that the Supreme Court shall have appellate jurisdiction for all cases except those involving ambassadors, ministers and consuls, and those in which a state shall be a party.  The court also stated that the Constitution of the United States is the supreme law of the land and when a conflict occurs between a law made by Congress or a state legislature and the Constitution the law must be considered null and void.  This is the first time a judiciary body ever declared a legislative act unconstitutional.

In 1820 Thomas Jefferson expressed his highly negative position on the practice of judicial review when he wrote in a letter to William Charles Jarvis the following:

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps.  Their power is the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.”

“If the Congress fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the president fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him.  They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfillment of their official duties, any more than the president or Congress may issue orders to the judges or their officers.  Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular example, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive or legislative to executive and legislative organs.”

“When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.  The exemption of the judges from that is quite dangerous enough.  I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education.  This is the corrective of abuses of Constitutional Power.”

“Pardon me, sir, for this difference of opinion.  My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if three powers maintain their mutual independence of each other it may last long, but not so if either can assume authorities of the other.” [The Making of America, p. 574]

Thomas Jefferson believed the proper method of correcting unconstitutional laws is for the people to elect new legislators to office and have the new legislators repeal the unconstitutional law.  Until the time that new legislators can be elected the people can use the power of the jury to protect themselves from the unconstitutional law.  If one branch of government can negate the procedures of another branch it ultimately has the power to control it by the threat of negation.  If the judicial branch can in effect veto a law without the legislative branch having an override then the judicial branch gains an indirect power to create legislation.  The unchecked power of the judicial branch in effect says to the legislative branch – “Write the laws our way or we will just throw them out.”  This is the exact reason why the Congress is given the power to override a presidential veto.  If the president had the power of an unchecked veto the president would have the implied power of – “Write the laws my way or I will just throw them out.”  The purpose of constructing a republic for a form of government is to make sure that governmental power is divided among multiple branches so that power is not concentrated in the hands of a few.  If one branch of government has the ability to control another, the system of checks and balances is not working correctly.  A republic that fails to properly balance the duties of government between its distinct branches will not last.  Power will eventually be consolidated into the hands of a few people and thus the government will become an oligarchy.  If the people of the United States do not recognize that power is currently being consolidated at the federal level and by the judiciary they may soon find themselves under the control of an oligarchy.  It may be time to consider passing an amendment to the Constitution that requires federal judges to be reconfirmed every 4 to 6 years by the Senate.  This would make sure judges that act in disagreement with the Constitution can be removed and would provide a powerful and much needed check on the judicial branch.