Encroachments & Oppressions By The Representative Body
Nancy Salvato, Director of Constitutional Studies
"If a pertinacious minority can control the opinion of a majority...the majority...must conform to the views of the minority.... Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good." -- Alexander Hamilton

In Federalist # 78, Alexander Hamilton is addressing the reasons for life tenure, salary, and the qualifications of those to serve in the judiciary department of the federal government. Hamilton explains that to expect the judges to hold their offices during good behavior follows an already established precedent in many of the state constitutions of the day. He contends that this is a barrier to the “encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”

He states that the judiciary is the most limited in ability to misuse its constitutional power because it has no “force (power of the sword) or will (control of the money or power to make rules).” It was his belief that the judiciary would ultimately depend on the executive branch of government to execute its judgments. It is essential that it be able to ward off any attempt by the other two branches to encroach on its limited power. He feels very strongly that the liberty protected under the Constitution would be in jeopardy if somehow the judiciary were aligned in any way with the other branches of government. He goes so far as to say that the judiciary would never be able to wield any power over the other two branches of government and not to worry about that eventuality.

It was his assertion that legislative authority can only be limited by an independent judiciary whose mandate is, in effect, to maintain the integrity of the Constitution. This would assure that no legislative act contrary to the Constitution could be valid. “…a constitution is, in fact, and must be regarded by the judges as, a fundamental law.” This is because its authority is derived from the people, a superior power.

He also warns of the inherent difficulty in being a federal judge because the records of precedents will be large and demand substantial of attention. Since it will be difficult, a person assigned the job in a temporary capacity would probably be “less able and less well qualified to conduct it with utility and dignity.”

Finally, he cites Great Britain as an illustrious example of the excellence of good behavior as the tenure for holding judicial office.

Today, to be a "strict constructionist" of the U.S. Constitution is to understand that when the answer is not remotely contained in the Constitution, decisions about the matter in question are best left to the judgment of the state and federal legislators. It should be recognized that it is beyond the proper role as judges in a democratic society to make decisions that restrict the people's power to govern themselves over the full range of policy choices that the Constitution left available to them.

Chief Justice William Rehnquist believed that the “constitution was created to restrain the reach of the federal government.” This has influenced many of his decisions to, “trim the power of Congress to tell the states what to do.” For example, he feels that any defendants delaying their death penalty convictions in state courts, by appealing their sentences in the federal court system is wrong. Therefore, in Teague v Lane, l989, and other cases, “his court eroded the ability of convicts to file appeals.” Congress rewrote federal law, in l996, making it virtually “impossible for someone convicted in state court to get to a federal court.”

Hamilton apprised his readers that the records of precedents will be large and demand lots of attention. In U.S. v Lopez, l995, “the {Rehnquist} court invalidated a federal act that made it a crime to possess a firearm within a certain distance of a school, saying that law enforcement and education should be local issues. In his opinion, Rehnquist wrote that the protection of liberty demands a limited Federal Government.” His court disavowed the earlier precedent established prior to his tenure.

Historically, the separation of church and state has been misinterpreted when it was merely meant to ensure that there would be no establishment of an official state religion, something the founders feared. In Zelman v Simmons-Harris, 2002, his {Rehnquist’s} court said that school voucher funds could be used at religious or nonreligious institutions because government programs should not obstruct freedom of religion since there is the prerogative for a parent or student to choose their institution of learning.

Judge Roy Moore defended his decision to maintain the depiction of the 10 commandments in the Alabama Supreme Court Building as an acknowledgement of God. By not acquiescing to the orders that it be removed, he was acknowledging to the world that God is the moral source of law. Remember, Hamilton’s words, “No legislative act contrary to the Constitution, can be valid…” The Alabama Supreme Court opens with: “God save the State and this Honorable Court.” Americans United for Separation of Church and State applauded the panel's decision to remove Moore from office. But Judge Moore wasn’t removed from office because he didn’t separate church and state. This was a case of the Judge thinking that he was above the law by not following the ruling that he remove the piece.

The issue might never have come up if the 10 commandments had been displayed among other legal documents in history such as The Constitution, The Bill of Rights, and The Declaration of Independence. Had it been done that way (as schools are required), it wouldn’t appear that one religion or philosophy takes precedence over the next. All would be equally represented. Another scenario that would have made a difference is if the state of Alabama had made the decision to put the monument in the Supreme Court Building rather than Judge Roy Moore.

Strict interpretation of the Constitution is one of trying to understand and abide by the founders’ intentions. Most recently, the inability of the Senate to bring to vote the judges submitted for nomination is an abomination to the Constitution. According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from being given the opportunity for a vote on the Senate floor. By using the tactic of filibuster, the Democrats in the Senate are putting politics above the sanctity of the Constitution. By placing the well being of their political party above the good of the people the obstructionist senators have made the minority the ruling voice circumventing the Framer’s intentions. In essence, they have made the minority the majority, which undermines the health and well being of The Constitution.