Surely philosopher Lord Acton was right when he said that power corrupts and that absolute power corrupts absolutely. There is no better proof of those words than the distortion of justice and the radicalization of the courts that has taken place in this country during the past fifty years.

The purpose of the courts, as the founders made clear, is to ensure that justice prevails in the land. The U.S. Constitution begins with these words: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

 

It is no accident that, second only to the formation of the Union, justice was foremost in the thoughts of the men who built this nation. They knew, in fact, that domestic tranquility, the common defense, and the general welfare could only be assured if justice were first established. Under their British colonial masters, the early Americans came to appreciate the true meaning of justice before the law. Even earlier, in Europe, their ancestors had suffered intolerance and persecution. The law that served the Crown was harsh and unjust to the common citizen, and judges were subject to bribes and treachery of every kind. The law was certainly no friend to men and women of an independent mind, and the founders of this new republic set out from the very beginning to create a system where justice would prevail.

 

With such a history, it is easy to understand why the framers of the Constitution so highly prized law and order. The formation of the federal judiciary was a central concern.

Nevertheless, the courts were designed to administer law, not to make it. The division of the national government into three branches—executive, legislative, and judicial—was an inspired innovation of the framers. They built into our constitutional apparatus a system of checks and balances to ensure that no single branch of government would be able to steamroll the others. Individuals chosen to serve on the bench, whether appointed or elected, whether federal or local, were to be faithful interpreters of the law. They were students of the law, with no legislative or executive functions.

 

Judges at all levels were expected to be experienced in jurisprudence. They were to be moral, above suspicion, circumspect in their personal behavior, highly disciplined, and defenders of the common good. They were empowered to settle disputes and to resolve matters of controversy according to known and currently existing standards of justice.

As such, justices of the Supreme Court and judges in each of the inferior courts across the land would be dependent upon the executive and legislative branches—equal to them in their constitutional responsibilities but subject always to “the will of the people.”

 

As Alexander Hamilton expressed in Federalist 78:

The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.