Most lawyers have a limited need to consult the five articles of the U.S. Constitution, and probably have not done so since attending law school. Most of the cases involving constitutional law invoke rights and responsibilities under the amendments, primarily the Bill of Rights and the 14th Amendment.
The actual body of the Constitution sets out the framework of our government. Each article addresses a different branch of government—how it is constituted and what powers are allotted to it. Article I addresses the legislative branch, Article II addresses the executive branch, Article III addresses the judicial branch, and Article IV addresses the rights reserved to each state and addresses how the states interrelate with each other. Article V sets out the process to amend the Constitution.
Our brilliant founding fathers constructed a federalist government, with a strong central government, and individual state governments. The central government is carefully constructed to separate the powers of each branch, but to allow each to exercise checks on the others’ powers. If you are still reading, you might be asking why I am reteaching what we all learned in fifth-grade civics? The American Bar Association’s theme for Law Day this year is Separation of Powers: Framework for Freedom. It is a subject we have probably not thought about much since that fifth-grade class, and unless any of us is a constitutional scholar, probably not much with a lawyer’s brain. So why did the ABA pick this subject, this year?
I can only surmise that the ABA chose this theme because there has been a slow erosion of the separation of powers, probably because so many of our citizens and even our leaders do not appreciate its importance as the foundation of our democracy. As lawyers, we are keenly aware of the erosion of the power of the judicial branch by many factors.
First, the judiciary is under economic attack. The judiciary depends upon the executive and legislative branches for funding. We have often seen the executive and legislative branches attack the judiciary’s budget requests. This includes the criticism of judicial salaries—it shouldn’t have to be the case that the best lawyers must be willing to take large pay cuts to be judges of the Court of Appeals.
It includes the cutbacks to support personnel, so essential in New York where the number of judges may be limited by the New York State Constitution. It includes restriction of overtime, so that an expert witness on the stand has to come back the next day, at great cost to the litigants, rather than allowing extended hours to accommodate his or her testimony.
Second, the legislative and executive branches consistently criticize the judiciary for the checks and balances they are called upon to exercise—ensuring that the legislative and executive branches stay within their constitutional powers. Every time a judge sets aside an executive order or a piece of legislation, he or she is criticized not only for the wisdom of the decision made, but for daring to challenge the executive or legislative authority. Pasted with the label “activist judge” or “so-called judge,” the pressure upon the judge must take its toll.
Third, the influence of the political process upon the selection of the members of the judiciary limits the independence of the judiciary. It is difficult for judges not to worry about pleasing the political leaders who hold their advancement or re-election or reappointment in their control. Even judges appointed for life feel the tug of pleasing the political leaders who were responsible for the appointment or election (see Bush v. Gore).
All of these factors have a distinct effect on the independence of the judiciary. As lawyers, this concerns us, but does the average citizen care? Wouldn’t it be enlightening, if we could imagine a government without an independent judiciary, sort of like our own take on “It’s a Wonderful Life,” to show Americans what it would be like if the Constitution didn’t set up the judicial branch to be separate and independent with strong powers?
We might first show our judges, like those in some other countries, removed or jailed for positions antithetical to the political leaders. We might show the logical next steps, where those with political power or allies with power can commit crimes without fear of consequence; where average citizens have no power to enforce rights; where courts are for pomp and show, leaving the real power to police who can jail and strongmen who can steal.
We might show that when the judiciary is no longer independent, and has no power, the legislature will soon follow, leaving all power in the hands of a despot who can control all without any checks or balances from the legislature or the judiciary or from the citizens who are oblivious to what has happened. Like Bedford Falls without George Bailey, it would be a pretty grim America to live in.
As lawyers, we know how important an independent judiciary is. On this Law Day, let’s make sure our fellow citizens understand it, too.
Sharon Stern Gerstman is counsel to Magavern Magavern Grimm in Buffalo.