Guideposts for Thinking and Discussion: The Court Defines Itself
"Justice" and the Founders
Article III of the Constitution provides for a judicial branch of government, with a Supreme Court at its apex. While the legislature, according to the Constitution, is to make law, and the President is to execute the law, the Court is to dispense "justice." In Federalist number 51, James Madison remarked that "Justice is the end of government. It is the end of civil society."
Understanding and defining "justice" has been a core aspiration for most political thinkers at least since the time the Code of Hammurabi was announced by that Babylonian king in the 18th century BCE. Fourteen centuries later the Greek philosopher Plato added philosophical speculation to the discussion of justice in his The Republic, a work well known by America's Founders.
Yet, in our own time, we ask government for much more than solely justice. We press a varied set of demands. We want our government to be "democratic." We insist that we be accorded our full rights, or our "liberty." We believe in full "equality." We want to be able to pursue our own individual well being, perhaps even achieving "riches." Finally, many Americans want their country to be "great," in Olympic competition ("U.S.A., U.S.A."), in world politics, and in the ultimate measure of history. If we took each of the terms just listed--democracy, liberty, equality, riches, greatness--would we consider any of them, or most of them, to be more obligatory aims of a society than justice? What if we were faced with the following question: "If you could assure yourself of only one feature of the government under which you live, what would that feature be: Democracy? Liberty? Equality? Riches? Greatness? Or Justice?"
Now, can we imagine a society that is completely democratic but that is unjust?
To put the matter more forcefully: is it conceivable that a majority, even an overwhelming majority, could determine to injure, even destroy, a minority of the population? Are there such examples in history? In recent history?
What if we could only be sure that our political society was committed to liberty? Is not anarchy the ultimate end of complete liberty? Could anarchy result in injustice?
Can complete equality be just? Assume we are observing a school class at the end of the term and the instructor announces that, consistent with her commitment to thorough equality, all students in the class will be given the same grade. If there were a student who had come to every class meeting and made the highest grade on every test, would that student consider the class "just" if another student who had attended half the classes and scored lowest on all the tests ended up with an identical grade?
In like manner, can we imagine a rich society that is unjust?
Can we imagine a great society that is unjust?
Even those of us who have not crafted a complex definition of justice may be able to understand why Madison and the American Founders believed "justice" to be the primary aim of civil society.
"Justice" and Fundamental Law
The question of what is justice, however, remains. If it is either the "assignment of deserved reward or punishment," or the "administration of law or of legal processes" (the highlighted definitions in the Oxford English Dictionary), we still have questions about who makes judgments about reward and punishment, who administers the law, and on what basis these decisions are to be made? We might worry about such decisions being made capriciously.
We now return to our classroom example in the previous section. Let us assume that when the class began, the instructor handed out a syllabus. Students in the class accepted this document. The syllabus contained, in understandable language, the list of books that were to be read, the nature and schedule of exams, and an explanation about how grades would be earned. Then, midway through the term, the instructor announced that a new translation of Tolstoy's novel War and Peace had just been published, and she now required all students to purchase the book and read it by next week, at which time she would administer a weighty exam on this important new work. Responding to student anguish over an extra and unanticipated assignment, the instructor argued that reading this classic work would be a life-enhancing experience for all students. What recourse did the students have? Of course, they could allude to the syllabus, which said nothing about such sudden and alarming assignments. The students might even complain to the Dean or Principal of their school. And they would have a sound case. Perhaps the Dean or Principal, citing the syllabus, would rescind the whimsical assignment.
In such wise, the U.S. Constitution is a basic, that is fundamental, law that was accepted by Americans at the Founding, and that, theoretically, is not to be contravened by any arbitrary law or public action--by a legislature, a president or governor, a school board, a city council, or any other public entity. That is, the Framers determined to have a written Constitution be the elemental foundation for determining justice. That does not mean that the Constitution itself was unerringly "just" (in fact, we might fault its commitment to justice when considering its indirect acceptance of slavery). Rather, the Founders decided to have a written Constitution be the basis of judgment, rather than a person, a religion, or an ideology. Thus, when making the most important decisions, the justices in the American court system are supposed to use the Constitution for their bearings, not their personal inclinations or beliefs.
Should Americans be bound by the fundamental law of the Constitution, which, after all, was written by mortal, and thus flawed, humans? Or, should our judicial renderings be based on some other source? If so, what other source?
"Justice" and Checks and Balances
Given the Founders' preference for a just society, and their crafting of a Constitution as the fundamental law, where then, in the new government, would they situate the judicial function? Who would make final decisions about the applicability of the Constitution?
The Constitution's Framers decided that this function could not rest with the legislature or the President, nor, for obvious reasons, with a king. It could not reside with a religious leader (there were too many kinds of religions, so no one would agree on a single person or single religious authority). And it could not be metaphysical beings making such decisions. Madison articulated the dilemma in Federalist 51: "...what is government itself but the greatest of all reflections on human nature? If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself." He then goes on to speak about checks among the various branches of government and the "distribution of the supreme powers of the state."
What the Framers provided was a three-tiered system of government with each branch being independent of the other. Thus, the judicial role did not rest with either the Executive (President) or the popular legislature (Congress), but with a novel creation, a court system headed by a Supreme Court.
This arrangement raises a question: Are judicial decisions administered by an independent, non-elected Court--on the basis of the Constitution's avowed "fundamental law"--more reflective of justice than if judicial decisions were administered by a popularly elected legislature, a president, or a religious group?
Judicial Review
Marbury v. Madison (1803) and the doctrine of Judicial Review provided immense authority to the Supreme Court--the authority to strike down laws or practices of the other branches of government, or of the states. At the same time, the doctrine of stare decisis suggests that Justices should give considerable weight to existing practices and precedents when making judgments. Yet when Brown v. Board of Education (1954) overturned Plessy v. Ferguson (1896), which provided for segregated public facilities, advocates of civil rights rejoiced, although at the time a majority of Americans may have opposed ending racial segregation. Today, most Americans see the Brown case as patently Constitutional and appropriate.
The Founders held two seemingly contrary views: one, that the dispensing of justice should be done in an orderly way that reinforced precedence; yet second that, as Alexander Hamilton said in Federalist 78, any act "contrary to the constitution" should be declared void.
Should the Supreme Court have the power to overturn state and national legislative acts, no matter how popular those acts may be, or how different the new judgment is from previous practice?
The Doctrine of Implied Powers
In McCulloch v. Maryland (1819) the Supreme Court confirmed the doctrine of "Implied Powers" for the national government. That is, by virtue of early Court decisions, the government is assumed to have many more powers and functions than those expressly stated in the Constitution. In addition, in Gibbons v. Ogden (1824) the Marshall Court granted the national government authority to regulate many forms of interstate relations on the basis of what is called the Constitution's "commerce clause." As a consequence of these early Court decisions the national Congress has developed wide-ranging license to pass laws regulating the economy, wages and hours of laborers, and child labor, to protect the environment, to fund schools and highways, and to do much more.
Should we accept the notion that the national government has many more powers and functions than those specifically articulated in the Constitution? Has the expansion of national government power via Court decisions been more beneficial or more detrimental to the country?