By Stephen L. Hall
Last night MyrmidoNOT was inquiring as to the function of judicial interpretation of statutes regulations and the Constitution. “Questions: Isn’t the SCOTUS the final arbiter of a poorly worded document of intent?” Which is both an interesting question and an area where I personally believe the founding fathers erred in their separation of powers doctrine and exemplifies my affinity for natural law.
That may see like a lot for such a simple question, but they are related, at least in my mind, but then that tends to often be a jumbled mess that no sane person would choose to explore.
It was the famed court case of Marbury v. Madison, 5 U.S. 137 (1803) under the auspices of the second Chief Justice of the Supreme Court, one John Marshall, which sought to establish the Supreme Court as a co-equal branch of government on a par with Congress and the President.
The reason that it had to wait until the second chief justice was two-fold: first, there needed to be an appropriate case or controversy; and second, it needed a chief justice who was not a founding father. The first chief justice, John Jay, who co-authored the federalist papers, would never have asserted in the Supreme Court authority which was not expressly contained in the words of the Constitution itself.
That is the lauded authority of the Supreme Court to interpret the Constitution itself and to test laws passed by Congress to see if they agree with the Constitution. Just where in the language of the Constitution does it grant this authority to the Supreme Court? It doesn’t.
Let that sink in a minute.
Here we complain about activist courts creating judge made law through the act of judicial interpretation, particularly in regards to a law’s Constitutionality, when the very notion of the courts’ authority to interpret laws was founded entirely upon just such an act of judicial activism. And that was barely a decade after the drafting of the document itself.
The original meaning and understanding of the Constitution itself could not survive a mere fifteen years from the drafting, debating, and adoption of the document.
To be fair to John Marshall, the Supreme Court’s authority itself was left rather vague as Article III of the Constitution was much shorter than Articles I & II delineating the powers, duties, and authorities of Congress and the President respectively.
It has justly been argued that the President or the Congress are in just as good a position to interpret the Constitution as the Supreme Court with just as much Constitutional authority to do so. It can even be argued that Congress already knows what they mean when they wrote the legislation so they don’t need the interpretation.
The power of any court is limited in that they can merely make a pronouncement in words, and words by themselves have no force to be effected. Therefore the only real authority any court has is that of moral and intellectual authority. A court which is not respected by the executive or legislative branches is powerless to carry out its decisions.
The same thing can really be said about any legislature and any law they have written or even the Constitution itself. The founding fathers recognized that in a very real sense, the military power, the executive, could always become rogue and the other branches of be swept aside in a totalitarian power grab.
However, in a very real sense, the executive is also as limited as the other branches of government as no government stands or falls but by the willingness of those charged with the execution of the governance are willing to comply and enforce the edicts and decisions. A President who is not followed is just as powerless as a Supreme Court which is not headed.
Thus all government authority, no matter how much they often may like to pretend otherwise, is at heart a moral authority, and authority which is created and sustained in the truth they embody and express.
That is both the basis for the concept of natural law and the essence of legal theories dating back centuries, that law is an expression of moral authority founded upon reason and logic. The ideal being that the true law exists as an abstract concept and the legal precepts and maxims, the laws written down by man are merely a poor attempt by man to discover, understand, and express the universal, divine, or natural law.
My favorite expression of the concept of natural law is: “That which defies reason, cannot be law.”
Which brings me to my estimation of where the founding fathers erred in their separation of powers doctrine. As you know the branches of government were separated along functional lines, the President carrying out executive functions, the Supreme Court carrying out judicial functions, and Congress carrying out legislative functions.
We loosely define the “legislative” function as “making laws”. This does not comport with a natural law understanding of the nature of laws as a manmade expression of abstract concepts of a universal legal truth. Why is legislating making law?
We tend to oppose judge made law, but that is precisely what Marbury v. Madison was, the courts declaring what the law is.
In an old case from the middle ages in England, the courts were faced with a drunken man who was taking swings of his axe at the tavern keeper’s wife because they had closed for the night, but the man missed and the court was left with the dilemma of the old adage, “no harm, no foul” in a situation where they did not want to say this behavior was acceptable.
The court came up with the definition of a new crime, an “assault”, which would be refined into the definition: to place one in an immediate apprehension of a harmful or offensive touching. We do not now disparage “assault” as judge made law, and one of the first acts of many of our state legislatures was to codify, or write down these common law ideas into textual format.
You cannot maintain that the legislatures actually “created” these laws as the laws were already in effect through the common law created by the courts over the centuries. The truth is that it matters less who articulates the laws and sets them down than it matters upon what philosophy those laws are based.
What the traditional view of law contemplates it that the laws are minimal, consistent, and reasonable. Is it really what we want to have a legislature make whatever laws it wants subject to the hopeful rational review of a court sometime later somewhere down the line?
Look at the easy example of Obamacare, so obviously and blatantly an unconstitutional power grab by the federal government where the government tried to construct an entire market by legislative fiat. When it came time for the Supreme Court to strike down this legislative non-sense, they failed.
Legislatures really serve the function of budgeting and allocating resources, and that is the proper function of the legislature rather than “making laws”, that is to say, regulating. It was once necessary for legislatures to periodically adjust tariffs or taxes as they were generally set in flat fees and not percentages.
To illustrate this one need only look at certain state laws, such as in West Virginia the maximum penalty for a misdemeanor assault and battery is up to six months in jail, and/or a $100 fine. Odd? Not when you realize that that $100 fine was still a $100 fine in 1931 when the code was reworked under the first Democrat legislature in the state, and probably had not changed since 1863 when West Virginia became a state.
The legislature often fails in its duty to update the laws, they have turned over many of those traditional regulatory function to executive agencies. This has fueled the growth of regulatory agencies in America, because the more laws that are written, the more updates, budgeting, and regulation is necessary.
By throwing off their regulatory responsibilities onto the executive branch through agencies, the legislatures abdicate their real function in favor of the more glamorous job of “making new laws.”
It is this that I view as the real function of legislatures, to regulate and budget. The legislatures should never have been allowed to “make laws”, because “laws” are discovered, traditionally by the courts, not made.
At least that is my view, that much of what we call “laws” are really regulations, much of what we call regulations are merely interpretations, and the courts grant them way too much deference. What is the real function of a legislature in your opinion?
