Denver Bar Association
November 2003
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A Debate at Our Very Core

by Joe Dischinger


How the judiciary plays a part.

By Joe Dischinger

We are engaged in a national debate about the proper balance between security and liberty. By virtue of our training and predisposition, lawyers understand the complexities, subtleties and implications of this debate better than the lay public, and it is our obligation to participate in this discussion.

Though the tension between individual liberties and the safety afforded by a strong government seems particularly intense today, this debate—and the ability to carry on the debate—lies at the very core of what it means to be American. These same practical and theoretical concerns confronted the learned men who drafted our Constitution. They were moved to rebel against infringements on their liberty by the crown. To avoid similar infringements by the new government they were charged to create, they employed the political science of the Enlightenment to moderate and frame the practical politics of the day.

The balance they struck between these sometimes contrary objectives of liberty and security is what was novel about the American form of government. In particular, they recognized that individuals and minority factions would need the protection of the government against not only tyrants, but also against well meaning over-reaching of the majority. Since the majority factions in society are, in theory, represented by the legislative and executive branches, the framers knew it would fall to the courts to protect those individual rights. Marbury v. Madison was not the first expression of this idea; it can be found in the writings of several political philosophers, and is set forth quite plainly (if anonymously) by Alexander Hamilton in number 78 of The Federalist Papers. In number 78, Hamilton went on to presage the legislative intemperance that might arise in a time of crisis such as we are facing today:

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which . . . have a tendency . . . to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. [Although the people have the power] to alter or abolish the established Constitution whenever they find it inconsistent with their happiness; yet, it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions of the existing Constitution would, on that account, be justifiable in a violation of those provisions. . . . Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act." The Federalist No. 78, at 469-70 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

While there is often criticism of so-called activist judges when they overrule laws passed by the legislature or by initiative, the original framers of the Constitution understood that it is not the role of the courts merely to interpret the will of the legislature, or even the will of a majority of the people. The judicial branch is designed to be institutionally conservative, to take the long view, and to moderate the self-aggrandizing instincts of government. When the people have reacted to a crisis by making "dangerous innovations" in the government that infringe upon civil liberties, it is the courts’ highest duty to block such actions. In doing so, the courts must look to centuries of thought and precedent about what those civil liberties are, and what it means for a government to infringe impermissibly upon them. These are not always easy questions, and there is room for even the most educated of citizens to disagree.

The framers knew that it takes education and thought to form legitimate opinions on such issues (see the beautifully crafted The Federalist No. 37 (James Madison)). Because there are a limited number of such individuals in each generation, Hamilton argued that federal judges should have life tenure. The Federalist No. 78 (Alexander Hamilton). While we cannot claim the erudition and stature of federal judges, we do certainly know more about these issues than the general public, and should help the public resist the temptation to over-adjust the balance between liberty and security.


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