Friday, June 13, 2008

Three Equal Branches of Government - HA! Just Kidding!

Yesterday the Supreme Court handed down its decision in the case of Boumediene v. Bush. The Court said that detainees at Guantanamo have the same rights as citizens of the United States and must be able to go to court to see if they can be freed.

What does this have to do with the topic of this blog (First Amendment)? Simply that many of the things I point to that are problematic today are the result of just such court actions.

In the case of yesterday's ruling I am not addressing whether this is a good thing or a bad thing from a logical or moral point of view. What I am concerned about is the balance of power. The Supreme Court has come to be the last word on many, many issues. But this was not the intent of the founders. In fact, the founders and many political figures since that time are and were afraid the courts would take more and more power as their own. A couple of quotes are listed below.

In this particular case, the Court heard a similar case previously. Despite that the Constitution clearly give the role of Commander in Chief to the President, the Court then said that the Executive branch could not detain prisoners (enemy combatants) with no guidelines from the Congress. So Congress and the President worked out a set of legal guidelines that would control such actions (by military tribunals). Now that the case has come before the Court again, the Court seems to have changed their mind. Even though Congress (the Legislative branch) and the President (the Executive branch) agree, the Court's power apparently overrides both other branches. In the words of dissenting Justice Scalia, "Turns out they were just kidding."

The Court also seems to have ignored previous Supreme Court decisions that upheld the premise that foreign enemy combatants held outside the U.S. did not have the same Constitutional rights as U.S. citizens.

When courts overturn actions of the two other branches of government and ignore their own precedent, it makes me nervous. When the courts gradually take over more and more power, it makes me nervous.

Consider the words of a couple Presidents:

In his first inaugural address (1861), President Abraham Lincoln warned:

"If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal."


From the site Jefferson on Politics & Government: Judicial Branch you can see how worried Jefferson was about the power the judiciary would gradually assume:

"It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Thomas Jefferson to Charles Hammond, 1821. ME 15:331

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