'How Many Branches Of Government Do We Have ?'
By William Bailey (12/31/02)
When the founding fathers wrote the Constitution of the United States, they established a form and concept of government never before known in the history of governments. One that was (and is) based on three co-equal branches: Executive, Legislative and Judiciary. As most will agree, the purpose was so that there would be "checks and balances" . . . so that no one branch could "out-power" the others.
The founders took great pain in setting out, in detail, the powers granted by the Constitution to each of the three co-equal branches. Those powers are clearly identified for any who will take the time to read them. And, it's pretty obvious that the founders never intended that one branch should "mosey" over into the powers of the other two.
Over the years, it is the opinion of this writer, that one of the three has, slowly but surely, overstepped its assigned boundaries . . . that branch is the Federal Judiciary. It wasn't done in an "all of a sudden" manner. Nonetheless, it has gotten to the point that one really has to wonder if the Constitution has been subverted to the point that now we have only two branches of Government. And, if this be true, then we must recognize that the "new" Legislative branch is made up of two divisions . .. the elected members of the House and Senate (who serve for specific terms) and the "unelected" members of the Federal Judiciary (who are appointed for life).
The role assigned by the Constitution to the Federal Judiciary was to interpret and enforce the laws of the land as expressed in the Constitution and those enacted by the Legislative Branch. It was never intended that the Judiciary should, by their rulings, "venture" over into the business of enacting legislation.
Sadly, that's what's been happening.
Now I know that there are a great number who advocate the position that the Constitution is a "living" document and, therefore, the Courts have both an obligation and a responsibility to "change" things to conform to today's practices. While I respect the fact that those who hold this position have a right to their opinion, I simply don't agree with it.
If change is needed in the Constitution, there is a very clear and well-defined process for effecting such change. It's called the amending procedure. Oh, it's not easy ! It requires a two-thirds majority vote in both the House and the Senate and a favorable vote by three-fourths of the States. Simply stated . . . if you can get the votes, you can change what the Constitution has to say. If you can't . . . oh well, there's always next time. But what it does NOT say is that the Federal courts can step in and do it for you. Again, their Constitutionally mandated role is to interpret and enforce NOT enact. The role of enacting legislation is specifically assigned to the duly ELECTED representatives of the people.
It becomes obvious (at least to this writer) that the founders never intended that changing the Constitution would be an easy process. The procedure set out is one more indication that they were serious about the first three words of the document . . . “We the People”. If the people of three-fourths of the states, speaking through their state Legislatures see fit to change the Constitution, then we must accept the collective and collaborative wisdom so expressed. But, to withhold from “We the People” that prerogative runs in direct contradiction to what is expressed in the Constitution.
And this needs to be said . . . the Judiciary is not alone in “overstepping” its Constitutionally assigned powers and responsibilities. Neither the Executive nor Legislative branches have “clean hands” either. In some ways, we seem to have reached a point where the boundaries of the three branches are so blurred that it's almost impossible to tell which is which.
The solution to this whole situation is really so very simple . . . let's return to what the founders envisioned and, in their wisdom, gave us . . . the Constitution. If, after careful thought and deliberation, changes are deemed to be appropriate and needed then let's follow the prescribed procedure.
There is an axiom that says, "If you keep on doing what you keep on doing, you're gonna' keep on getting what you keep on getting". It is the concern of this writer that, if we stay on the present path and don't return to the specifications of the Constitution, we're going to wake up one day and find that we have only one branch and it's almost impossible to identify which one it is.
How many branches do we have now ? I guess it's a "coin toss" and depends on your vantage point.
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