The purpose of this paper is to show that although not originally intended to, some our modern day courts in the United States have in essence become legislators. I will give a brief overview of the history of courts and site some cases where the decisions handed down or the opinions of the court have set precedent in the way the law is understood and enforced.
As long as man has been on this earth there have been conflicts or disputes that needed to be resolved by a third party. By definition, a court is a.) a place where legal justice is administered b.) a judicial tribunal duly constituted for the hearing and determination of cases. The recognized existence of even primitive courts implies a relatively high degree of social organization and the need for systematic resolution of disputes based on established customs and rules of conduct. Courts have been set up to hear disputes between two or more parties. In medieval European history a Curiae was a court, or group of persons, who attended to a ruler at any given time for disputes of social, political or judicial purposes were resolved. It's composition and functions varied considerably from time to time and from country to country during a period when executive, legislative and judicial functions were not as distinct as they were later to become. The ruler and the curia made all policy and decisions either great or small and if the ruler was a powerful one, were as active as a modern day court of law. The curia of England underwent an evolution from the medieval curiae. It was known as Curia Regis, which was introduced at the time of the Norman Conquest (1066) and lasted until the end of the 13th century. The Curia Regis was the start that the higher courts of law, the Privy Council and the Cabinet, evolved from. About the same time, the Curia undertook financial duties. The members were called "justices" and in the king's absence presided over the court. In 1178, Henry II took another step by appointing five Curia members to form a special court of justice, which became the Court of Common Pleas. Initially the justices of this court followed the King's court from place to place, but Magna Carta (1215) provided for the court to be established in one place.
There was also Ecclesiastical courts, which was a tribunal set up by religious authorities to deal with disputes among clerics or with spiritual matters between clerics and layman. Although you can find such courts today among the Jews, Muslims and some Christian sects, their functions have become limited to strictly religious issues and the governance of church property. During earlier periods, the ecclesiastical courts often heard matters of the non-spiritual, and during the Middle Ages; the Roman Catholic Church even rivaled the non-spiritual courts in power. Some of the secular matters dealt with included anything to do with marriage and exclusive jurisdiction over cases involving wills. In England, the ecclesiastical courts had complete jurisdiction in matters of succession of personal property until the 16th century, and then in competition with the courts of chancery, until 1857.
In many areas, where royal justice was insufficient, church court assumed jurisdiction. However, by the end of the 14th century, as the administration of royal justice increased, so did the heightened controversy between the two powers. The secular authorities found ways to diminish to power of the ecclesiastical courts, thus rendering their jurisdiction to that of spiritual matters. The civil contract of marriage was separated from the sacrament and other contracts and wills were brought into the secular domain. In England today the ecclesiastical courts exercise jurisdiction in civil cases concerning church buildings and in criminal cases in which clergymen are accused of spiritual crimes.
As our forefathers came to America, they brought with them the ideals that were set before them in their native country. Although they left England looking for a new way of life, they used these ideals as the basis for a new society.
With the Constitution of the United States a new form of government was formed. The three branches of federal government that arose from this are: legislative (Congress), executive (President), and judicial (courts). Article I of the constitution establishes the legislative branch, Article II the executive and Article III the judicial. These three branches operate within a system known as "checks and balances", this means that although each branch is separate, the Constitution often requires the cooperation among the branches.
The federal courts are often called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by the Constitution. The federal courts interpret and apply the law to resolve disputes, through fair and impartial judgements. The federal courts do not make laws, that is the responsibility of Congress. Nor do the courts enforce the laws; this is the role of the President and executive branch departments and agencies.
With the last statement being said, through out the years the Supreme Court has decided cases or made statements of opinion on cases that have set precedent on how the law was to be interpreted. The legislative branch of the government was set up to make, change or repeal laws, and not the judiciary branch of the government. As the Supreme Court has presided over cases, they have been called upon to interpret a specific law and clarify its intent. By doing so, they may alter the way that the executive branches of the government have been enforcing the law. Below is a summary of some cases that have made significant changes to the way a law was viewed, or clarified an interpretation of that law, thereby in essence "making" or "changing" a law.
Marbury v. Madison, 5 U.S. 137 (1803) Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and held that term for life under the terms of the Constitution. When the Republicans won the election of 1800, they found that while they controlled the presidency and Congress, the Federalists still dominated the Judiciary. The first act of the new administration was to repeal the Judiciary Act of 1800, which created a number of new judgeships. Although President Adams had attempted to fill the vacancies created by this act before the end of his term, several of the judgeship commissions had not been delivered. One of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as justice of the peace.
The new chief justice, John Marshall understood that if the court awarded William Marbury the commission, (a writ of mandamus- to force to deliver) the Jefferson administration would ignore it, and significantly weaken the court system. On the other hand, if the court denied the commission, it would appear that the justices acted out of fear of the administration.
In Marshall's decision he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issues writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. He was able to chastise the administration and not created a situation where the court would not respected. With this decision the Supreme Court became arbiter of the Constitution and clearly defined that they where the final authority of what the document meant. This showed that in fact the supreme Court became an equal partner in government, and has played that role ever since.
Martin v. Hunter's Lessee, 14 U.S. 304 (1816) This case is best known in which the Supreme Court established it rights to review and reverse state decisions. This case concerned a Loyalist, Lord Fairfax, who fled England during the Revolution. Lord Fairfax owned substantial land in Virginia, which he passed on to his nephew, a British subject. Virginia passed an Act in 1782 voiding this grant based on the contention that, under Virginia law, aliens could not inherit property. Additionally various confiscation measures where enacted, but never implemented, during the war had transferred the Fairfax land to the state. A third party, David Hunter, obtained a grant for a portion of the land from Virginia and brought and act of ejectment against the Fairfax interests. In ensuing challenges, the Supreme Court of Virginia decided for Hunter, but the United States Supreme Court reversed the Virginia court in 1813. In response, Virginia's judges claimed that, although bound by the Constitution and federal laws, they were not bound by the Supreme Courts interpretation of those laws. This brought the case back to the United States Supreme Court in which Justice Joseph Storey's opinion powerfully asserted the supremacy of the federal law as interpreted by the Supreme Court. Thus setting precedent that the Supreme court has the power to reverse a state's court decision.
Miranda v. Arizona, 384 U.S. 436 (1966) In this legendary case, popularized in television and movies, it requires police to tell suspects of their right to remain silent, warns that anything they say can be used against them and notifies them of their right to have a lawyer present during questioning. This ruling is aimed at the Fifth Amendment privilege against self-incrimination. It is rooted in the argument that while the defendant was in police custody was questioned by police officers, detectives or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all of the cases the questioning elicited oral admissions and in three of the cases signed statements as well, all of which where admitted at trial.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
"The cases before us raise questions, which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. 384 U.S. 436, 440
We dealt with certain phases of this problem recently in Escobedo v. Illinois, 378 U.S. 478 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to
the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.
This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions.1 A wealth of scholarly material has been written tracing its ramifications and underpinnings.2 Police and prosecutor 384 U.S. 436, 441 have speculated on its range and desirability.3 We granted certiorari in these cases, 382 U.S. 924, 925, 937, in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give 384 U.S. 436,442 concrete constitutional guidelines for law enforcement agencies and courts to follow."
The Justice Department has recently urged the Supreme Court to reaffirm its 1966 Miranda Decision, arguing that Congress lacked authority to pass a 1968 law intended to reverse Miranda but never enforced.
"In the 33 years since (Miranda) was handed down, it has become embedded in law," said the filing signed by Attorney General Janet Reno, asserting that the decision has become "a constitutional foundation" that cannot be reversed through legislation.
It still rests with the Supreme Court to decide in upcoming weeks whether to review the 1968 decision.
As you can see in the three examples given, the Supreme Court has not authored new laws, changed or repealed them. The rulings they have handed down have affected many individuals. The interpretation of the laws and amendments they have reviewed, have dictated the way the police departments, other law enforcement agencies and courts do business, thus in my opinion acting as legislators in some form.
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