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Chief Justice John Marshall

Our Two Branch Democracy

July 22, 2022 by Site Admin Leave a Comment

Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

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Filed Under: America, Democracy, Elections, Executive, Gavel Gamut, Judicial, Legislative, United States Tagged With: amendment of Article III of the U.S. Constitution, Chief Justice John Marshall, electoral college, executive branch, federal judges, Founders, James M. Redwine, Jim Redwine, judicial branch, legislative branch, life-time judicial appointments, Marbury v. Madison, president, Thomas Jefferson, three equal branch democracy, two thirds of a democracy, U.S. Supreme Court

An Imbalanced Three-Legged Stool

October 5, 2018 by Peg 1 Comment

Why are so many people on all sides so angry about the United States Supreme Court life-time appointment? The answer may be in the question: it is an appointment and it is for life.

The true genius of the Founding Fathers was they understood power corrupts and since human beings constantly seek power it must be diffused into three branches of government. What they did not anticipate was that the Supreme Court, the Judicial Branch, would slyly usurp the power of the Executive and Legislative branches, starting with Chief Justice John Marshall and the case of Marbury versus Madison in 1803 in which the Supreme Court declared it had the power to review and invalidate or validate decisions of the other Branches.

This power of review established an inequality among the three Branches that has grown to a crisis. Where the Judicial leg of the stool has neither power of the purse nor the gun, this power of review protrudes causing an imbalance. This is exacerbated by the appointment of the justices and the manner in which the appointments are made. They are appointed for life by one person, the President, with the “advice and consent” of the Senate, i.e., one hundred more people.

Whereas the public has the right to vote for the President and each member of Congress, the public is shut out of choosing the extraordinarily powerful people in the Judicial Branch. This causes great concern for contesting groups when such personal issues as health care, police powers, control of one’s body, and distribution of tax monies may work their way from the legislative and executive bodies to the courts. For it is more true today than ever that as the visiting French philosopher and tourist Alexis de Tocqueville declared in 1835: in America, eventually every political question becomes a judicial one.

With the President, every four years we can make a change. With members of the House of Representatives, every two years the entire House can be changed and with the Senate, if we wish, in six years we can choose someone else. That is the crux of why people are so desperate to influence the choice of a Supreme Court Justice, i.e., it is not a choice made by them and it is for life.

It seems to me a rational solution is to change how we select our federal judges. Of course, I think all judges at all levels should be elected in a modified non-partisan election, but today we are just addressing the federal food fight that embarrasses and endangers us all. I suggest we put any future Supreme Court replacement on the ballot and limit their term. Of course, this will require amending the Constitution, but the Constitution has been amended many times before. Power to the People, not the politicians, is worth considering and worth the trouble it will take to make the change.

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Filed Under: America, Democracy, Gavel Gamut, Judicial, Law Tagged With: Alexis de Tocqueville, amend the Constitution, Chief Justice John Marshall, elect all judges in a modified non-partisan election, eventually every political question becomes a judicial one, executive branch, Founding Fathers, imbalanced three-legged stool, James M. Redwine, Jim Redwine, judicial branch, legislative branch, life-time appointment of federal judges, Marbury versus Madison, power to review and invalidate or validate decisions of executive or legislative branches of government, Power to the People not the politicians, Supreme Court Justice, three branches of government, United States Supreme Court

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