FEDERALISM AND THE JUDICIARY

Our nation's very first government was established by the Articles of Confederation - which were drafted in 1778 and went into effect in 1781.

Due to the weak and ineffective goverment it produced, our present Constitution was drafted in 1787, and was to become effective when 9 of the 13 states approved it.

At the time, each state was viewed as a separate republic, there was a great fear of a strong centralized government, and advocates of the Constitution were careful to call themselves Federalists as opposed to Nationalists. Federalists favored a decentralized government in which states' rights were dominant, with a central government which was limited in the power sharing equation.

Many fears and objections were expressed to this new proposed government, and in order to allay these fears and secure passage of the Constitution, the proponents of the Constitution also submitted to the States a series of resolutions which were to become the first 10 Amendments, (now known as the Bill of Rights & the recently adopted 27th Amendment.) Ratification by 9 states finally occurred on June 21, 1788, but it took until May 29, 1790 for all 13 states to ratify the Constitution.

The new government was based upon a combination of political theories, such as the balance of powers between the a. executive b. legislative and c. judicial branches of government, a separation of powers between the church and the government, and federalism constituting a sharing of powers between the central and federal government (whose powers were specifically delineated and enumerated in the Constitution) and all those remaining powers retained by the States in accordance with the 10th Amendment.

The 10th Amendment to the Constitution thus reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".

Most of us studied all of these matters in our high school Civics classes and college Political Science 101 courses. But today, I challenge each of you to review these principles and apply them to the important issues of our time.

Presently, we read and hear of mounting domestic crises such as:

The Los Angeles riots and continuing racial strife

Drugs, gangs, and the lack of law and order--

Constitutional rights of defendants- Miranda case

Death penalty - endless judicial reviews and appeals

Stalemate and gridlock existing between the legislative branch (congress) and the executive branch (Presidency)

Term Limitations

Excessive Bureaucracy - the making of law by regulation- by unelected officials - wetlands- EPA- endangered species.

Balancing the budget

Irrespective of your views on any of these issues, can anyone doubt the prevasive influence of the federal government in our lives? And can any of this be reconciled with our constitutional theories of a limited federal government?

Today my goal is to provoke your thoughts regarding our constitution and the role of the judiciary in our governmental processes.

As one of the 3 equal branches of government, what is the proper role of the judiciary?

Should a judge "make law"?

In our state, members of the judiciary are elected. On the federal level, all of the judiciary are appointed. But judges, even if elected, are not representatives of the people but are arbiters of public and private disputes.

A significant disputes exists between these following views of the proper role of judges-

1. Judges should simply interpret the law (or as Nixonians remember, be good "strict constructionists") who leave to the legislative branch of government [Congress, state legislators, quorum court, or city council] the job of establishing public policy through its enactments of legislation.

2. Judges should do justice and the judiciary should be comprised of what is referred to as "judicial activists", who use their position to advance and even engineer a change in the laws as society is constantly evolving and changing. Some people, particularly those who support big government don't think that government is doing enough to solve the myriad of our society's problems, and isn't weilding enough power and influence in our everyday lives, and that "judicial activism" is a logical extension of a strong centralized government authority. These people believe that big government should be all things to all people, and should be able to solve all problems.

These separate philolophies have come to the forefront in recent years in the U.S. Supreme Court confirmation processes of Robert Bork and Clarence Thomas, where the nominees' view of the limited role of the judiciary brought criticism from those who advocate a more activist role for our federal judiciary. In Bork's case, his nomination was rejected as he was viewed by many as too conservative-having expressed, in many writings, a more limited view of the federal judiciary than was acceptable to a majority of the U. S. Senate.

Another way in which these differences have manifested themselves is in the support/criticism of the occassions when the federal judiciary involves itself in matters of a local nature.

We are all aware that the federal courts have been operating the Pulaski Couty School districts for a number of years- even to the extent of micro management of such details as the assignment of specific pupils to specific schools and classrooms. Some federal courts, such as in Kansas City, have ordered elected school board members to raise taxes to fund programs required by the court. Remember that colonists revolted in 1776 because of "taxation without representation"?

Some of you may not remember that the federal courts basically ran the Arkansas prison system for 20 years, and a few years ago, a federal court got embroiled in determining who would be the homecoming queen at McGehee High School.

Most recently, a federal court assumed juridiction over all of Arkansas' judicial districts.

The initial basis for the federal court involvement in our State's judicial districts was alleged racial discrimination in violation of the Voting Rights Act of 1965. But, the Attorney General of Arkansas agreed to a settlement, which found no discrimination, but which sacrificed a number of incumbent judges including our own Circuit Judge Paul K. Roberts. Even more importantly, the settlement provided that no changes can be made in any judicial district by the Arkansas legislature without prior approval of the federal court for a period ending not earlier than January 2, 2001. The right of our elected state representatives was taken away by the consent of a state constitutional officer and given to a federal court. The ceding of basic state government authority to the federal government. Writers of the constitution could never have envisioned this result.

Even a state court judge from Conway made the news in the past year when he threatened to imprison a County Quorum Court and County Judge unless they acted to pay the fees owed to an attorney for representing an indigent defendant. Isn't this an example of the judiciary taking control of county government to the exclusion of the executive and legislative bodies?

Some judicial commentators have stated that the "Miranda case and other rulings have expanded Defendants' rights and made swift and certain punishment for crime an impossibility, and some are incensed as the Constitution has been ignored and stood on its head in order to create rights that support liberal fads in social engineering".

Take the case of abortion. Forget for a moment whether you are against it, or for it--- should the courts be involved in this issue? Or, instead, should the elected representatives be involved in this issue?

Some federal jurists believe that there is no constitutional or federal issue here. They want the federal goverment and its courts out of the issue. Proponents of abortion are now protesting to keep the right as a federal issue.

Opponents of abortion believe that if there is any decision to be made on this issue, local communities and states should be involved.

Proponents want to take the decision away from local government.

As a practical matter, there is no doubt that it is easier to lobby Congress in favor of a more activist judiciary that supports abortion, thereby hoping to impact federal court appointments, than having to lobby 50 separate state legislatures to support pro-abortion legislation.

The sale of liquor and other alcoholic beverages, like abortion, is a hot issue. The federal government once moved into the area during the Prohibition Era. Since rescinding Prohibition, the federal government got out of the business of regulating the sale of alcohol in our state, and current legislation now known as Local Option Election Laws allows townships and counties to vote on this issue. Pulaski County is wet - most areas of Drew County are dry. This is democracy in action, probably as our Founding Fathers intended. Local voters deciding issues of importance, the way our Constitution envisioned our system of limited government.

But the theories that originated our form of government are largely being ignored. Through the years, federal rights have expanded multi-fold, and the expansion is justified by the Interstate Commerce Clause of the Constitution, the Due Process Clauses of the Fifth and Fourteen Amendments, the Penumbra Doctrine, and the Necessary and Proper Clause and the Supremacy Clause of the Constitution.

Too often, elected representatives in the legislative branches of government fail or refuse to act on important issues of the day, such as the federal budget or abortion; when the Congress does act, it appears to be acting as if only the federal government could be the answer to the social problems in America. But, given a hot issue, like the federal budget deficit, the legislative branch sometimes has failed to act, apparently out of fear of taking a stand.

Legislators in Congress, and the states, often fail or refuse to act on issues, such as spending programs (which might cause taxation) or deficit spending, or abortion, and the apparently prferred methodology is to allow the judiciary (often the federal courts) to do what the legislators either won't do or dont't want to take the heat for doing. Is it not the height of arrogance or hypocrisy when a candidate seeking office, or an incumbent, would rather the courts advance a social agenda because they don't want to campaign or take a specfic stand on an issue because they are afraid of not being elected or re-elected?

I suppose it is easier to point the finger at federal judges who are completely immune from political attack because of their lifetime appointments, thereby enabling elected officials/ legislators to escape responsibility for enacting or rejecting a particular legislative proposal. Even when legislators act, language in the legislation is often left deliberately vague, thereby opening the door to litigation to interpret it and having it defined by the courts rather than the legislators that enacted it.

So there we have it. We have arrived at a point where we are ruled by the courts rather than our elected representatives. There is rule by the federal courts and the federal government despite the initial efforts of our Founding Fathers. Where is our democracy, with government acting only through our elected representatives? And where is our limited form of government, and power sharing amongst the federal and state governments?

As one commentator noted recently in U. S. News and World Report, we live in the age of litigation. "Almost no result of the democratic process... seems immune from attack as a violation of basic constitutional rights. Constant running to the courts to save us from ordinary democracy is a hallmark of our time. This can be looked at as a by-product of the decline of politics. But it is teaching a whole generation that litigation is our basic form of government...When legislators abdicate their responsibility this shifts power to judges... subverting one aspect of our systems of checks and balances... Judges who get into the habit of playing legislator find it tempting to start treating all laws including the constitution as merely a springboard for implementing their own sense of right and wrong. That is the problem ........if legislators don't legislate, guess who will?"

I would submit that government is not, nor was it ever intended to be, the answer to all problems - and that the judiciary, and the invoking of the judicial process, was never intended to be a part of the social and political processes.

William R. Daniels

June 4, 1992