Founding Fathers were wise to create 3 branches
Separation of powers has served the country well for hundreds of years
Editor’s note: This is a regular feature on issues related to the Constitution and civics written by Paul G. Summers, retired judge and state attorney general.
Our Founding Fathers, who envisioned the principles of the Declaration of Independence and the Constitution, were not merely exceptionally smart; these men were clairvoyant. They could see into the future and answer questions before issues or controversies even arose.
Our Constitution has guided us with a steady hand, through trials and tribulations, since 1789. It has been tested time and time again and has weathered the storm. We thank you, Founding Fathers, for your vision and wisdom.
Let us look at examples. The Fathers created three separate and equal branches of government – legislative, executive and judicial. They envisioned that the first two would be political and accountable to the people. Congress consisted of the House of Representatives and Senate, and representatives were elected for a two-year term. Senators of the “Upper House” were elected by the state legislatures until the 17th Amendment in 1913 provided that senators were popularly elected by their states’ voters.
The president and vice president were elected by the people of the United States, not by popular vote, but by an Electoral College.
These politicians were elected for two-, four- or six-year terms and were accountable to the people of their districts, states or the country. They passed and approved legislation. They set policy. Once elected, they concentrated on reelection.
How judicial branch differs from the legislative, executive branches
The third branch was different. This
was the judicial branch and began in 1789 with the Supreme Court “...and in such inferior Courts as the Congress may from time to time ordain and establish.”
The judiciary is accountable not to the people, as are Congress and the President, but to the Constitution and the Rule of Law. Justices of the Supreme Court or judges of the circuit or district courts are nominated by the president and confirmed with the advice and consent of the Senate. Once confirmed, they hold their office for life or “...during good Behavior.”
Judges interpret the actions, laws or regulations of the other two branches and determine if those actions or activities
are consistent with the Constitution. They are not supposed to be politicians, and the Founding Fathers did not mean for them to be such. The judiciary is independent of the other two branches. The judiciary acts as a checks and balances for abuse of power by the other two political branches.
We shall discuss checks and balances more in the future. But the Founding Fathers realized that presidents, senators, and representatives come and go; but judges are there for life.
They are not supposed to be policy makers; they determine whether the policies developed by the other two branches are consistent with our U.S. Constitution. They read words and interpret
those words.
Judges are not bound by polls or politics. Judges wear black robes which represent the impartiality of the law; they ought to consider wearing black and white striped robes, like referees. That’s because they are referees or umpires and call the balls and strikes.
Our study of our founding documents and American government will continue in later articles. Please read the Declaration and the Constitution. It is time well spent.
Paul G. Summers is a lawyer. He formerly served as an appellate and senior judge, district attorney general, and the attorney general of Tennessee. He resides in Holladay and Nashville.