Problem: Separation of Powers
As a further means of controlling the power of government, the Constitution sets up the three federal branches and provides mechanisms for them to act as checks and balances on each other. The President, Congress, and the courts each have specialized areas of authority, as provided for by the Constitution. Congress has the sole power to legislate at the federal level, whereas the president, among other things, executes laws, makes treaties, and commands the armed forces; the Supreme Court and the inferior courts have judicial authority at the federal level. The result is a system of separation of powers designed to prevent too much authority from residing in any one branch. Thus, the president has the power to veto acts of Congress; those vetoes can be overridden by a two-thirds vote of each house, and the judiciary can find those acts unconstitutional.
The role of the judiciary has been a matter of particular controversy in recent years. The historic 1803 Marbury v. Madison decision8 was the first time the Supreme Court had declared an act of Congress unconstitutional, and the decision also established the principle of judicial review; that is, the power of the courts to consider and, if necessary, invalidate congressional and executive branch decisions. Although neither of those powers was expressly provided for in the Constitution, the Court considered them to be implicit in the legal structure created by the Constitution. Critics today argue that the Marbury reasoning has been stretched too far and that, in effect, courts have been making law, rather than merely interpreting it. Those critics say that federal and state judicial decisions finding a "constitutional right" to, for example, abortion or same-sex marriage, have reduced the authority of our directly elected legislators and placed too much power in the hands of jurists who are necessarily somewhat removed from the weight of public opinion.9 On the other hand, an aggressive judiciary has played a crucial role in the advance of justice and the protection of personal freedom. [For the National Constitution Center]
Questions
1. As noted, the Constitution does not expressly authorize judicial review. Should we, therefore, assume that the framers of the Constitution did not intend to afford that power to the courts?
2. In your view, do the courts have too much power in our lives? Explain.