What is the Role of the Courts in a System of Separation of Powers and Checks and Balances?
The United States Court System
When the framers of the Constitution arrived in Philadelphia in 1787 to consider a new form of government for the United States, it was a foregone conclusion that it would have three branches. Well-educated students of history, the framers had been influenced by great political thinkers of the past, including the Frenchman Montesquieu. Central to his ideas about government was the concept of separation of powers. He believed that the best way to preserve individual liberty and avoid tyranny was to divide the powers of government into the legislative, executive, and judicial function. (See Articles I, II and III of the United States Constitution.) In this way, none of the branches would possess all of the power and each would balance one another off.
Those at the Constitutional Convention worried about power, too. Fresh from the revolutionary experience, they wanted to make sure that the government had enough power to solve the country’s problems, but not too much power to ride roughshod over the states or individual citizens. Many viewed the judicial branch as, in the words of Alexander Hamilton, “the least dangerous to the political rights of the Constitution” and as a necessary buffer between the powerful presidency and Congress.
Article III of the Constitution states: “The judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” The article goes on to describe what kinds of cases the “judicial Power” would be empowered to hear. Language in the article suggests that the framers wanted the judicial branch to serve an independent role free from political pressure. It stated that judges should “hold their Offices during good Behavior.” This meant a judge could only be removed for misconduct. It also stated that judges should receive a salary that could not be reduced during the time they held office. This would assure that judges could not be punished by salary reductions if they made unpopular decisions.
Though the framers created an independent judiciary in Article III, they also included some checks and balances against too much judicial power. The Constitution gave the president the power to appoint judges with the “Advice and Consent of the Senate.” (Article II, Section 2.2) (See more on how the Senate’s power to give “advice and consent” to the president has evolved in Lesson 3—The Selection of Judges.) It gave Congress the power to create or eliminate lower federal courts and determine what cases could be appealed to them.
Oddly, the Constitution says nothing about the one job the Supreme Court is most known for today. That is the power to review federal and state laws to determine whether or not they are constitutional. (See the Lesson Plan 2—Judicial Review.) Some scholars have argued that the framers assumed that the Supreme Court would have this power without having to spell it out in the Constitution. They cite, for example, Alexander Hamilton in The Federalist Papers, a series of articles published to support the ratification of the Constitution. He wrote:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by judges, as fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
Once the Constitution was ratified, the First Congress of the United States went about establishing the rest of the federal courts under the powers given to it. The Federal Judiciary Act of 1789 laid out a plan that today has grown into an extensive system of federal trial and appeal courts. It also gave federal courts the power to take appeals from state decisions. The U.S. Constitution attempts to ensure judicial independence.
Missouri’s Court System
Missouri has the same separation of powers system of government as the United States and grants its courts have the same powers as the federal courts. (See Articles II, III, IV and V of the Missouri Constitution.) Unlike the federal constitution, Missouri’s Constitution grants the power of judicial review to Missouri’s courts (Article V, Section 3) and extensively lays out how many courts there will be, how many judges there will be and what their qualifications will be. (Article V)
Missouri also has a system of checks and balances—balanced power between the three branches and each branch has checks on the other two. In Missouri, the Governor appoints some circuit court judges and all appellate judges from a special non-partisan panel. The legislative branch (Missouri’s General Assembly) has the power of purse—it decides the budget of the judiciary. The Governor also has the power to approve or veto all or part of the budget. (The President of the United States does not have the power of line item veto like the Governor of Missouri.) The judicial check on the executive and legislative branches is the power to declare laws and executive acts unconstitutional, which means the laws and acts are null and void.