Conflict has occurred among the members of every society in history. In ancient time the absolute ruler and his appointed subordinates often served to resolve conflicts that they believed needed to be dealt with. The Constitution of the United States sets forth three separate branches of government. Similarly the fifty States constitutions have established this same division of authority into three separate branches. These various constitutions also provided “checks and balances” among the three branches of government to keep each branch in line.
A primary role of the most representative branch, the legislature, is to enact legislation. The role of the executive is to carry out or “execute” the duly enacted laws. The courts or judicial branch involves considering disputes that come before them. Courts have sources that they should follow in making decisions. These include the Constitution of the United States, the various constitutions of the several states, the laws enacted by legislatures and the “common law”. The common law originated through the body of English law as adopted and modified separately by the different states of the United States and by the federal government. Courts resolve disputes between people, companies and units of government. Frequently courts are called on to uphold limitations on government.
The individual judge’s duty is to consider the facts that come before them and follow the constitution, laws and the common law in making their decision. There role is to not to substitute their personal opinion for the applicable law in the case. It is clearly not the responsibility of a judge to legislate. That is the duty of the various legislatures . Judges are in an unique position to ensure that the other branches of government do not violate the U. S. Constitution including its first ten Amendments, the “Bill of Rights”, and by doing so, protect the rights of our citizens. This duty applies to a judge in the lesser courts and all of the way to the highest court in our land, the United States Supreme Court.
Over the last several decades, there has been, especially in our federal courts, a blurring of the roles of courts. Courts and even the United States Supreme Court have often acted as an “unelected legislatures”. The create new principles of law out of thin air. I object to this trend because, unlike Congress, the Supreme Court, when they create or alter the law, are unfettered by periodic elections where citizen can change the direction of our nation by voting legislators out. These action are contrary to the separation of powers written within our Constitution and opposed to the principles of representative government.
Over the last several years there is some indication the these courts might be returning to its more traditional role of the courts. As a strong advocate for truly representative government, I welcome these indications that the federal court in the future will be more like the judicial branch envisioned by our founders.