The Third Branch

TimeWatch Editorial
February 01, 2017

According to the Wilson Center website, Philippa Strum, Global Fellow at the Woodrow Wilson International Center for Scholars, is the Center’s former Director of the Division of United States Studies as well as Broeklundian Professor of Political Science Emerita, City University of New York. After teaching political science (U.S. government and constitutional law; civil liberties and human rights; women, law and politics) at City University of New York for more than two decades, Dr. Strum became a visiting professor of constitutional law and civil liberties at Wayne State University Law School. 

Dr. Strum published an article entitled “The Role of an Independent Judiciary” which was posted on the Democracy Papers website. She begins her article with the events that took place during the 2000 Presidential Election. As you might remember, that particular election was filled with controversy. She begins the article with the following.

“The presidential election of 2000 went on and on in the United States, to the consternation of many. The deciding votes were cast in the state of Florida, and long after Election Day ended, questions were raised about whether some of Florida's ballots had not been counted because of mechanical errors, and about what should be done if that was the case. The state legislature of Florida got involved. So did a number of state judges. Heated speeches were made by Florida's secretary of state and by members of the U. S. Congress. Partisans of both candidates, George W. Bush and Al Gore, demonstrated in Florida and at other sites scattered throughout the United States.”Dr. Philippa Strum, “The Role of an Independent Judiciary”

The significance of the events that took place in the 2000 election is relevant when the original constitutional structure of government of the United States is considered. Simply put, the constitution provides a separation of powers into three branches of government.

The first branch is the Legislative. Their responsibility is to pass laws. There are two houses in the legislative branch. The first house is The Congress. There are 435 members of the House, representing the 50 States in the Union by population. In other words, each state is represented in the Congress based upon the size of their population. The second house is The Senate. There are 100 Senators, two Senators per State. When laws are considered, they must first pass through the Legislative Branch. Once the law is passed it is then submitted to the Executive Branch.

The second branch is the Executive, headed by the President. The Vice-President and the President’s Cabinet are all part of the Executive Branch. Their job is to enforce the laws that have been passed. Of course, the President must sign the law into effect, or veto the law.

The third branch is the Judicial Branch. The Supreme Court consists of nine justices, who serve for life, or have the option to retire. The justices are nominated by the President and must be approved by the Senate. An interesting function of the Supreme Court is that once a law is passed by the House and Senate and signed into law by the President, the Supreme Court retains the right to determine if such a law is Constitutional. This requires then, that the justices of the Supreme Court, cannot and must not function politically, but must impartially follow the law. On this point, Dr. Philippa Strum says the following.

“The independence of the federal judiciary and the societal agreement that its pronouncements must be honored is a hallmark of the American political system. There is in fact no other court in the world with anything close to the extraordinary power that the Supreme Court has to decide societal disputes, interpret the national constitution, and make public policy. William Rehnquist, the chief justice of the Court at the time of the election dispute, remarked some years earlier that the U.S. judiciary is "one of the crown jewels of our system of government." Dr. Philippa Strum, “The Role of an Independent Judiciary”

Even though we have, for the most part, become accustomed to this system of government, there are those who still ask questions about it. Notice how Dr. Strum addresses those questions.

“The question frequently asked about the U.S. judiciary has two parts. First, why did the United States adopt a mechanism that allows a few judges who are appointed rather than elected (and who hold their position for life) to tell the other branches of government what they can legitimately do? Second, how does that kind of institutional power comport with the rule of the majority implicit in a democratic political regime? The answer to the first query lies in the U.S. view of what government is all about.”." Dr. Philippa Strum, “The Role of an Independent Judiciary”

Here are her answers.

“The Founding Fathers who wrote the U.S. Declaration of Independence of 1776 and the Constitution of 1789 believed that the rights of the people preceded the existence of governments. Human beings are born with rights, they declared in the Declaration, and the purpose of government is to protect and enhance those rights. Government, for example, has to safeguard the physical well-being of people and their property, which is why there are criminal laws and governmental officials to enforce them.” Dr. Philippa Strum, “The Role of an Independent Judiciary”

That sounds great! Except for one issue that Dr. Strum introduces;

“But if the new government protected the people from each other, the framers of the Constitution asked, who would protect the people from the government? Governments could be wrong, governments could be despotic, governments could abuse the people's trust and abridge their rights. One of the crucial elements of American political thought is the conviction that all institutions are potentially corrupt and that all politicians can be corrupted, not only by the tangible lure of money but by the even more pernicious one of self-righteousness. Their answer was to check the power by dividing it. There would be three separate branches of government: the presidency, the legislature (Congress), and the judiciary. Congress could pass no laws without the agreement of the president; the president could enact no policies without the consent of Congress; and both would be held accountable by the judiciary, which would assess their actions on the basis of the powers given to each branch in the Constitution. The judiciary would be the final interpreter of the Constitution, which was the ultimate statement of what the sovereign people wanted their government to do and the limitations on governmental power.” Dr. Philippa Strum, “The Role of an Independent Judiciary”

When the Judicial Branch becomes politicized, its function is therefore compromised.

Cameron A. Bowen



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