Federal courts should do some soul searching.
Some seem to think the purpose of government is to regulate our families, take our property, and make elites richer by giving them our money… They are wrong.
Our founders asked “what is the purpose of government?” James Madison, a delegate to the Constitutional Convention and future president answered in Federalist Paper No. 51:
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.
It is important to understand that achieving justice is the objective of both the federal and state governments in the compound republic of the United States. We too often presume dispensing justice is the job of only federal and and states judicial departments, rather than our government as a whole.
This is a big mistake.
It is the legislature which has the primary governmental role in promoting justice because it is responsible for enacting laws and overseeing the other two branches of government to achieve the end of justice for all. Indeed, the legislature is the only branch of government which is directly responsible to the people. The President is elected by the electoral college. And judges are appointed by the President and confirmed by the Senate (which originally was not elected by the people.)
The history of the Civil War and ensuing amendments to the Constitution thereafter confirm the judicial branch never has had much interest in promoting justice as a high priority governmental objective.
Consider: The original Constitution was a pro-slavery document designed to protect the interests of the wealthy. As time passed it became obvious to many that slavery was wrong and some States outlawed slavery.
When a slave, Dred Scott, claimed his freedom in a free state the Supreme Court ruled he could not seek his freedom from a federal court because he was property, not a person, and therefore could not be a citizen.
In seeking to make its point clear the Supreme Court decided that all people of African ancestry — slaves as well as those who were free — could never become citizens of the United States and therefore could not bring a case in federal court for anything.
Chief “Justice” (not) Taney, joined by six other “justices” (not), also held that under the Constitution the federal government did not have the power to prohibit slavery in its territories and that Dred Scott must remain a slave forever. Then in repugnant detail Chief Justice Taney documents why African slaves who did not come to this country freely (but as plunder) had no rights to access federal courts under the Constitution.
It is worth reading this case, Dred Scott v Sanford. In this case the Supreme Court states clear as day that it has no responsibility to provide justice. Id. at 405. (“It is not the province of the court to decide upon justice or injustice…”)
Because there was no way for the people to repudiate this irresponsible judicial review except through war, 620,000 people died in the great Civil War seeking to rectify that injustice Supreme Court sought to institutionalize forever.
Following the Civil War in 1865 the States ratified the Thirteenth Amendment which abolished slavery, thereby rebuking the Supreme Court’s decision that slaves were property, not people.
The Fourteenth Amendment was ratified three years later in 1868. Section I states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5 of the 14th Amendment gives Congress the right to pass statutes which are designed to correct past pervasive governmental injustices by the States. See e.g. Tennessee v Lane.
Some legal scholars suggest the passage of the Fourteenth Amendment after the Civil War was the equivalent of a second founding for this nation. Indeed, the American Bar Association cover story for May, 2017 suggests The Fourteenth Amendment “has become a mini-Constitution for modern times”. I agree.
The Fourteenth Amendment is meant to restore “justice” for all United States citizens as an end of government and civil society. Hopefully, federal courts understand this.
I remain pessimistic that federal courts will recognize justice as the end goal for government because since the very beginning our federal judicial branch has consistently favored the interests of the wealthy against those of the everyday Americans – over 75% of which cannot even afford an attorney to represent them nowadays.
Since the very beginnings of our country the Judicial department has resisted allowing juries to serve as a democratic check on its power and over time has become increasingly “judge-centric”, more like a monarchy than a court.
Hopefully, federal courts will do some soul searching in 2017.
United States Chief Justice Roberts recently seemed to encourage this when he wrote:
“In celebration of Law Day, May 1, 2017, I encourage federal judges throughout the country to recognize the day and this year’s theme, “The Fourteenth Amendment: Transforming American Democracy,” as we work together to advance public education about the constitutional values that define and shape our great nation.”
FEDERAL COURTS SHOULD DO SOME SOUL SEARCHING