Is the Judicial Branch Unconstitutional based on The Founding Fathers Original Intent.pdf

Current Landscape of The Court 2016-2020…………………………………………………...3

Ibid ……………………………………………………………………………………………….5

Partisan History of The Courts…………………………………………………………………5

Recommendations To Correct The Judiciary…………………………………………………..6

as a constitutional check on the two other branches of government. Each branch functions

ways to correct this problem.

writes that the judiciary is the weakest of the three branches of government and will be the least

irritating of all three. Federalist 78 also states that the judiciary would never interfere with the

other two branches of government. While there may be cracks in the courts of oppression of

individual liberty, this will never fully endanger the rights of citizens so long as it remains

separate from the other two branches of government. 2"There is no liberty, if the power of

judging be not separated from the legislative and executive powers”.

design. Alexis De Tocqueville in his writings of Democracy in America wrote concerning

also points out that judges under the United States system must not apply any law or policy that

violates the United States Constitution.

than intended through court hearings such as Marbury V Madison which established the courts to

determine if a law is unconstitutional. While this practice of judicial review I do not have a

problem with as it certainly acts as another needed Constitutional check of power on the stronger

two branches. Where I do draw the line is how the other two branches of government in current

politics use the judicial branch.

Supreme Court. The Judicial Branch under Article III was never meant to be an extension of the

legislature or partisan politics.

Incorporated, 2012. Accessed March 24, 2022. ProQuest Ebook Central.

least with respect to political ideologies. 5Months prior to the presidential election, long time

justices Antonin Scalia who was idolized amongst conservatives had died. The reason he was

well loved among the conservative community is because he centered his rulings around the

original intent of the constitution and the framers as a whole. With his death came a void in The

Supreme Court, instead of allowing the Constitutional process to undertake the Republican

centrialist views. However, because this was a contested election where the balance of political

party power would be determined for years to come, the judge was not even considered for

appointment as mandated by the Constitution.

is no legal precedent set that would require an outgoing President to withhold his legal

obligations to the Constitution. 7What makes matters more troubling is the fact that almost four

modified October 11, 2020.

https://www.theatlantic.com/ideas/archive/2020/10/republicans-are-abusing-the-concept-of-precedent/616

564/.

years later with the presidential election between sitting President Donald Trump and

subsequent section will show that this power struggle to have the power in the Court which was

supposed to be separate from the other branches is not unprecedented.

infiltrating the judicial branch is no new feat. As I mentioned in the introduction both the

Republicans and Democrats have utilized the courts to form connections with judges that share

similar ideologies in order to ensure their agenda is protected if challenged by the courts. In my

opinion, part of the problem of why the Court has become an unofficial aid to prison politics is

because of how it is constructed. 8As noted by Professor Balkin of Professor of Constitutional

Law and the First Amendment, Yale Law School, The Supreme Court only hears limited cases

per year. The courts also control their own dockets of cases as there is no written law that

requires them to hear a certain amount of cases vs other cases. According to Professor Balkin,

the courts were substantially more conservative and more willing to hear matters regarding

defending commercial advertisers and challenging public-sector unions during the Marshall

8Balkin, Jack M. "Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the

Cycles of Constitutional Time." Texas Law Review 98, no. 2 (2019): 215-66,

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recommend increasing the number of cases the Supreme Court hears each year. The limited

number of cases that reach the court, as I discussed in this paper, is among the reasons why there

is such a strong political party influence on the court. I indicated previously that cases tend to be

selected based on which side of the political spectrum a court sits on (Marshall Courts, Warren

Courts). With significantly more cases being filed each year, there may be less of a rush to appeal

to the courts. In addition, partisan politics may begin to diminish in the judiciary as with a larger

caseload justices will agree to hear cases on both sides of the spectrum. This recommendation

could work, as previously mentioned, Professor Balkin makes an intriguing point that when

championed as a reason why she should be elected President. As specified in the 10th

Amendment to the United States Constitution, each state has certain powers over how it governs.

Since the framers were unclear about healthcare and related topics like abortion, the "right" to

abortion, it is not a matter for the Supreme Court to decide since the Courts are there to uphold

what laws and protections the Constitution enumerate, not to assume law. So with that. With this

in place, there will be less of a push (presumably) by liberals and conservatives to stack the

courts in their favor in order to preserve judgments and policies concerning Roe v Wade and

past when interpreting the constitution. Additionally, McClellan writes this stems from the

argument that judges must advocate and promote moral law. To some extent, this makes sense as

Americans are entitled to laws that protect their right to life, liberty, and property. As McClellan

points out, judges who interpret law based on personal opinion or bias are typically mistaken. As

a result, judges interpreting the law based on their own biases and ideas make rulings contrary to

the Constitution and the framers' intent. McClellan is right that judges cannot rely on their bias as

a basis for upholding constitutional law. Therefore, it is necessary to have some sort of

record-keeping system for future judges.

theoretically, take away the President's influence when it comes to the choice of a new justice for

the Supreme Court. The president would then be more inclined to nominate the best candidate

rather than a judge who will carry the executive branch's influence for a life term if term limits

11 Sundby, Christopher and Suzanna Sherry. "Term Limits and Turmoil: Roe v. Wade's Whiplash." Texas

Law Review 98, no. 1 (2019): 121-61,

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-limits-turmoil-roe-v-wades-whiplash%2Fdocview%2F2330959843%2Fse-2%3Faccountid%3D12085.

10 Mcclellan, James. Liberty, Order, and Justice: An Introduction to the Constitutional Principles of

American Government. Indianapolis: Liberty Fund, 2000.

were imposed. In doing so, there would most likely be a less contentious nomination process, as

and executive branches there are certainly cracks and imperfections to this. The Supreme Court

throughout time has strayed away from its original intentions of Alexander Hamilton in

Federalist 78 and Article III of The United States Constitution. 12This as I have maintained

throughout the paper is dangerous as the courts no longer consider the original intent of the

framers as the Marshall court opinionated should govern the country. Rather they focus on

personal bias and party politics to determine what cases they will hear and how they will

interpret the law in accordance with their biases. Until there is once again a separation between

the judiciary branch and the other two branches of government as originally intended,

constitutional law and the intent of the framers will continue to be abused and ignored in the

12 Mcclellan, James. Liberty, Order, and Justice: An Introduction to the Constitutional Principles of

American Government. Indianapolis: Liberty Fund, 2000.