Court Shorts: Separation of Powers


This concept of separation of powers is
what makes America great. It is absolutely the genius of our democracy.
Here we are over two centuries later and still the Constitution with its three
pillars of government exists in the same form as it did at the founding. All of
these parts working together creates a team effort, which really aids our form
of government and creates its stability. Many people don’t realize that the
Constitution sets out three branches of government. The first is the Legislative
Branch. The second branch is the Executive Branch that we typically think
of the president, but it also includes all of his executive officers. And the
third is the Judicial Branch, and that means the Supreme Court but it also
means the United States Courts of appeals and the United States District
Courts. Why would the framers want to set up such a complicated system that
consisted of three branches of government with separate powers, but
within some codependent powers? They were students of human psychology. Because
they appreciated that a free society does require the fusion of authority.
They said the right way to do this is to have checks and balances. Each branch has
designated powers, but some of those powers are co-dependent on cooperation
with the other branches of government. The process of passing a bill in the
Congress requires a lot of debate ,and discussion, and compromise. Congress, they
can’t act alone to create a law. It requires the President to approve the
law, of course there’s the veto power. If he vetos it, it goes back to the Congress,
and if they truly believe that the law should be passed they can override that
veto by a two-thirds vote. Those laws are further held in check by the judicial
review process, to make sure that the law complies with our Constitution. If
someone doesn’t like that law they can challenge it
and argue that it violates the Constitution, and they can file a lawsuit
in federal court. If that happens, it’s up to the Judicial Branch to decide
whether the law complies with the Constitution or not. The Judiciary is
likewise checked by the other branches. Number one, it has no policy role in
the government. It simply interprets the law, and so if a particular judge or
circuit judges or the Supreme Court justices disagree with public policy,
they have no say in that. They simply interpret the laws that come before them.
And if Congress passes a law, that’s challenged under the Constitution, the
Judiciary has the power to say: that law violates the Constitution and to strike
it down, but that’s not the end of the story. Congress can come back and look
for another way to try and achieve the same result in a fashion that is
constitutional, and they’ve done that on many occasions in our history. We’ve got
Congress and the President, and their elected. The president nominates us, and
then the Senate confirms us, but the reason for that is so that we can retain
our independence. The founders felt that the independence of the judiciary was
critical in one of the crucial ways we have that independence is through life tenure.
We don’t have to answer to Congress or to the White House or to the executive
branch if we make a decision they disagree with. When there is a decision
from the Supreme Court that’s not popular,
sometimes that lack of popularity is exactly the way the system is supposed
to be working. The example I’ll give you there is flag desecration. There was
legislation that precluded the burning of a flag.
Obviously the executive branch sought to enforce that legislation, and then it
ultimately became the responsibility of the courts to make an assessment as to
whether that legislation was constitutional. No one’s in favor of
burning a flag, but the idea is that the Supreme Court believes that the Constitution
protects everyone’s liberties, even for speech you don’t like. And that’s what
the First Amendment is about, and it’s through the separation of powers that
were able to protect that. The courts are the ultimate guardians of
the law. We don’t have the power of the purse, we don’t have an army, our only
power is our ability to defend the Constitution. What the Federal Judiciary
has, is as the guardian of the Constitution, is we have the last word on
what the Constitution means. The reason we endure, is because we have a system that
ensures through these three separate branches of government, that check and
balance each other all the time, that all of us are protected by a single system
that seeks to ensure fairness, liberty, and justice for everyone.

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