The Proper Role of the Judiciary
John Stoeffler has a column today in the South Side Journal, in which he quotes the famed constitutional scholar Joseph Story in support of his argument that each branch of government should be its own "final arbiter when it comes to deciding upon the constitutionality of the powers the Constitution authorizes and delegates to it." If Congress or the president overstep their proper constitutional authority, Stoeffler says, the only legitimate remedy is to vote the bums out the courts should have nothing to say on the matter. Stoeffler, who apparently operates a "constitutional think tank" called the Madison Forum, makes this notion of limited judicial authority the basis of his support for a proposed constitutional amendment before the General Assembly that would prohibit Missouri’s courts from ordering any increase of taxes or any expenditure of public funds unless they have been specifically authorized by the legislature or a vote of the people.
Stoeffler’s reasoning is flawed, even though the idea behind the constitutional amendment itself has some value. Federalist 78 explains that the judiciary is the proper branch of government to keep the other branches of government within their constitutional boundaries. Alexander Hamilton’s explanation of the judicial authority is directly contrary to that adopted by Story (and now, apparently, Mr. Stoeffler):
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. [… T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.
Hamilton also opined on the limitations imposed on the judiciary itself. In contrast to the executive branch, which "holds the sword of the community," and the legislative branch, which "commands the purse" of the community, the judicial branch "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgments." (Emphasis in original.)
So, as described by the authoritative statement on the meaning of the U.S. Constitution, the proper role of courts is to rule upon the constitutionality of the acts of the other branches of government but they are only empowered to strike down violations, not to refashion the laws so they will conform to the judiciary’s notions of what is proper. For example, school finance cases have been raging for years in Texas, but (despite the intense efforts of the school districts) the Texas Supreme Court recognizes that even when it has held the financing program unconstitutional, it is not permitted to compel the legislature to adopt a specific scheme. Instead, while the unconstitutional system may be enjoined, the legislature has full discretion as to how it will remedy the deficiency. And, of course, even the judiciary’s decisions are subject to checks and balances, in that the executive branch must agree to enforce the courts’ judgments.