2302+Spring+2009+Week+Eleven


 * The Judiciary: Definition and Historical Background**

Power points to be added soon.

The [|judicial branch] is the third branch of government we will cover, and the last of the three branches outlined deparately in the United States and Texas Constitutions (Articles 3 and 5 respectively). Typically it is said that the judiciary has the power to interpret the law, and this is true, but its power goes beyond that. The judiciary has the power to [|adjudicate], which means to settle a dispute according to established judicial procedure. Once a law has been made by the legislative branch, and implemented by the executive, it is put in action. An individual or entity might find itself acused, by the executive, of violating the law. Or they might find themselves sued by a private party on the basis of a right or power established in by law. Simply put, the judiciary provides the setting where that dispute can be reconciled.

A court can be thought of as the place where those disputes are in fact reconciled. It contains a judge who is to oversee the process. These disputes can involve criminal matters, which pits individuals or groups against the government, or civil matters where individuals or groups are pitted against themselves. Within the court, be it a trial or appellate process, a set of procedures determine how a dispute is to be reconciled. These procedures can be established by law, or can have evolved over time. Often this involves the court interpreting the law, or even the constitutional framework that governs the entire process. Since interpretations of the law or Constitution can vary between judges, and since outcomes of cases often ride upon how the law or Constitution is interpreted, this aspect of the judiciary is especially controversial. It is also highly interesting.

As with the legislative and executive branches, we'll begin our coverage of the judiciary branch with historical context. Part will focus on the development of judicial institutions, part will focus on the development of law. The institutional discussion concerns the evolution of legal institutions and their relationship with the executive and legislative branches. As with previous sections, we will look at the early development of institutions around the Magna Carta, the era of the Stuart monarchs and the period of time leading to the Glorious Revolution. We will pay special attention to the control the monarch had over the judiciary and the problems that posed. This will help us understand the crucial importance of judicial independence and explain why our federal judges, once appointed, serve for life.

We will also look at the development of British common law and equity, which is the legal system that American law is still based upon.

Finally we will once again look at the grievances listed in the Declaration of Independence, this time at those that focused on judicial abuses. This will set us up for an analysis of the U.S. and Texas Constitutions with a greater appreciation of the concern of the founders that the constitutional design provide an effective government that also restrained itself.

- Wikipedia: [|Judicial Independence]. - Dictionary.com: [|Adjudication]. - JCA: [|Judicial Independence].

Timeline:

871 - 899: [|King Alfred] rules, establishes the Book of Laws. ?: [|The Court of King's Bench] meets wherever the King was. [|The Court's] existence is traced back to [|King] [|Alfred]. 1154: [|Henry II] becomes king, Establishes Royal Magistrate Courts, begins to develop [|common law] and trials by jury. 1347 - 1640: The [|Star Chamber] meets. 1670: The Trial of William Penn held. 1685: Judge Jefferys presides over the [|Bloody Assizes]. 1689: The Declaration of Rights places limits on monarchic control of the judiciary. 1735: [|John Peter Zenger] acquitted of sedition by colonial jury. 1776: The Declaration of Independence cites several examples of the usurpation of judicial power among the grievances against the King of England.


 * Study Guide Questions**

- What is adjudication? What other powers does the judiciary have? - How does the judiciary fit within the broader framework of the system of checks and balances? - What is a trial? What is an appeal? - What is ciminal law and civil law? - What is [|common law]? How do the courts contribute to the development of common law? - What relationship does common law have with stautory law and constitutional law? - What is [|equity]? - What were the problems associated with the Star Chamber? What factors made them abusive? - Be able to describe the trials of William Penn and John Peter Zenger. Why are these considered to be historically significant trials? - What specific grievances were made against the King of England in the Declaration of Independence?

Written Question for Fall 2009

1 - What is common law? What is equity? 2 - Both King Alfred and Henry II were argued to help develop the common law. What were the respective contributions each made? 3 - The Star Chamber was another of the mechanisms which added to the power of the British monarchy. Describe the court and explain how it strenghtened the monarchy. How did it lend itself to abuse? 4 - Select one of the sets of Federalist / AntiFederalist Papers which discuss the design of the judiciary and outline the arguments in each.

Due on the date in your syllabus


 * The Role of the Judiciary in the System of Separated Powers**.

As mentioned above, the judiciary is simply the place where disputes in society are reconciled. This is what the term adjudication refers to: The legal process by which a judge or arbitrer reviews evidence in order to determine the rights and obligations rival parties have to each other. These disputes can include criminal cases, where government charges a defendant with violating a crime, or a civil case where private citizens can take a grievance involving damages or a brojken contract, against each other to the court.

There are two types of processes we need to be familar with. The first is a trial court, or the court of original jurisdiction, where the purpose of the process is to have facts and evidence introduced by litigants before an impartial jury that will then sift through the evidence and the legal reasoning presented along with it and determine whether a defendant is guilty. A trial is a matter of fact. The only role of the judge is to oversee the process in order to determine that constitutional principles -- such as the due process rights established in the 4th through 8th Amendments of the Bill of Rights -- are adhered to.

Appeals are based on process, not facts. In an appeal, the loser in the lower court makes a plea to a higher court that a procedural error occured at trial. This can means that some due process rights were not respected (for example, a search was not based on probable cause) or perhaps the very law that a person wa convicted of violating was nto constitutional. This, for example, is the claim that opponents to campaign finance reform make about law such as the Bipartisan Campaign Reform Act.


 * King Alfred and Henry II**.

In the discussion of the historical development of the executive branch, we looked at the role Henry II played in developing the administrative apparatus that allowed him to centralize his control over Britain. Prior to his rule, and especially prior to the Norman Conquest, the administrative apparatus was more localized and people were often subject to the arbitrary rule of the local baron. A centralized bureaucracy was essential to the strengthening of the monarch. The same was true for judicial institutions. In this case the development was two fold.

First a common understanding of the the law had to develop. Instead of court decisions being based purely on local custom, these local customs would be modified to fit a common, national approach to settling disputes. This meant that a common law would apply throughout the kingdom. The settlement of disputes would be uniform. Similar disputes would have similar settlements regardless of the location of the dispute. This involved the second development, the actual courts that would hear these disputes. Rather than rely solely on local courts with local judges, the king had his own court, the Court of King's Bench, with ultimate jurisdiction over common law matters. The king would also send his own judges throughout the kingdom to sit on local courts and oversee the proceedings. This allowed for the evolution of common practices in the court.

Both King Alfred and Henry II are argued to have played key early roles in the development of the common law. Alfred's [|legal reforms] were limited to developing an early form of common law. Henry II also modified common law, but in addition to that he helped reform legal procedures and developed a new court system. Prior to Henry, trials by ordeal were the rule, but he institutted jury trials and grand juries in order to make the process both more fair, and more controllable by local citizens.


 * The Common Law**.

It might be best to begin a discussion of the common law by doing so in tandem with statutory and constitutional law. [|Common law] is law developed over time by the decisions made by judges in specific court cases and is the name that used to refer to legal systems based on the accumulation of those decisions. It is judge made law. [|Statutory law], on the other hand, is law made by a legislature. Common law preceeds statutory law because a British legislature did not possess such a power for many centuries following Henry II' rule. [|Constitutional law] is defined as law based on a country's fundamental legal structure as defined either in a single written document, as in the case of the United States, or precedence, as in the case of England. Constitutions are concerned with the design, functions, powers and relationships of governmental institutions.

In the United States, constitutional law is the fundamental law of the land and all other laws must be in accordance with it. If a dispute arises that places common or statutory law against constitutional law, the latter wins. The principle of judicial review evolved as a means of enabling a court to declare a statutory law null and void, or unconstitutional, if it violates the Constitution. That said, Constitutional law -- at least in the Unites States -- is the newest type of law. The idea of statutory law, that a legislature can pass laws, preceeds it, and both are preceeded by the common law.

One aspect of common law makes it unique, and some might argue more efective than either statutory or constitutional law. Since it has evolved piecemeal over time in response to actual disputes brough to variosu courts over history, it is organic. Statutory or constitutional law may be based on some theoretical idea about how a law may potentially work, but common law has the virtue of having already been tested already. Common law is based on the settlement of actual disputes, so it has practical utility that statutory law may not.

For the developing British state however, it is important to understand that replacing local custom with a common law that is applicable across the land, and establishing a court system capable of applying the common law to court disputes, the power of the central government and the monarchy that controlled the courts, grew.

- [|Common Law - Henry II and the Birth of a State]. - [|Henry II and the Common Law]. - Britannica: [|Edward the First]. - Wikipedia: [|English Law]. - [|Common Law]. - [|Statutory Law]. - [|Constitutional Law].


 * Equity**.

In Section 2 of Article 3, the U.S. Constitution states that "//The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . "// This refers to common law and also to "[|equity]." Equity is a looser form of law that attempts to deal with issues of fairness and is meant to allow judges to go beyond the narrow confines of the common law.

- Dictionary.com: [|Equity]. - Merriam-Webster: [|Equity].


 * The Court of King's Bench and Royal Magistrate Courts**.

While the establishment of common law is important, the more crucial thing is to develop a court system to implement the common law. This is what sets Henry II apart from other British monarchs of his era. As with the rest of the administrative apparatus, the establishment of a royal court system allowed for effiecient, effective monarchic control over the country.

- Wikipedia: [|Court of King's Bench]. - Classic Encyclopedia: [|Court of King's Bench].


 * The Star Chamber**.

The Star Chamber was the name given to a court that was used by monarchs between 1487 and 1641 as a tool to control the country, and later under the Stuarts to supress political dissent. It was a court of equity, meaning that it was intended to grant remedies in cases that common law courts were unable to. These proceedings were marked by secrecy, the lack of juries, and the use of coercive techniques to get evidence against defendants. They became tools of the arbitrary will of the monarch. When originally established, they were effective ways of ensuring that justice could be served against powerful defendants, especially members of the nobility who could intimidate lower level trial judges. Under the reigns of James I and Charles I, the courts were used to punish parliamentary and Puritan opponents. They became another symbol of monarchic abuse and another mark against the Stuarts.

The campaign against the Star Chamber led to the development of independent courts. This was another method by which the executive branch was brought under control. The term "star chamber" is often used to describe any unfair inquisitorial process where the defendant is given minimal ability to mount a defense, or even get basic information about the accusation so they can mount a defense.

- British History: [|The Star Chamber] - Wikipedia: [|Star Chamber]. - Luminarium: [|Star Chamber]. - Google timeline for [|Star Chamber]. - Wikipedia: [|Judicial Independence]. - JCA: [|Judicial Independence].


 * Judge George Jeffrey**.

For an interesting story about one of the more notorious judges of this period (post Star Chamber), click here:

- [|George Jeffreys].


 * The Trials of William Penn and John Peter Zenger**.

Two trials of the 17th and 18th centuries provide great examples of the evolving role of juries.

You may have heard of William Penn, or if not, the name of the land grant he received from the King: Pennsylvania. Prior to establishing the colony, Penn had converted to Quackerism, which took aggressive stances against Catholicism, Puritanism and Anglicanism. This made him no friends. He was arrested for preaching Quackerism before a crowd in London in violation of laws against assembly. The ensuing trial was controlled by the judge, who denied Penn the opportunity to see the charge agsinst him and instructed the jury to find him guilty. When they refused to do so, they were sent to jail for contempt and fined by the judge. Eventually the jury was able to establish its right to be free from the coercion of the judge, and the principle of independent juries was solidified.

- [|uscourts.gov]. - [|shapirosher.com]. - Wikipedia: [|William Penn].

The trial of John Peter Zenger took the principle of independent juries a bit further. Zenger was a colonial printer in New York who printed -- but did not write -- newspaper articles critical of the colonial governor. He was acussed of seditious libel since the stories he published had "//in them many things tending to raise factions and tumults among the people of this Province, inflaming their minds with contempt of His Majesty's government, and greatly disturbing the peace thereof//" (Bench Warrant for Arrest of John Peter Zenger, November 2, 1734).

In his defense it was argued that what he had printed was true, but according to established law, this was irrelevant since the importance of maintaining respect for government from criticism trabscended whether the criticism was true. The jury acquited Zenger despite the fact that he had clearly violated the law as written. The jury had in effect nullified the law in its acquital of Zenger. It also established the idea that truth is an adequate defense for charges of libel.

- [|Famous American Trials]. - [|Peter Zenger and the Freedom of the Press]. - [|The Trial of John Peter Zenger]. - Wikipedia: [|Jury Nullification].


 * The British Bill of Rights**.

- Wikipedia: [|British Bill of Rights]. - WikiSources: [|British Bill of Rights].


 * Grievances in the Declaration of Independence**.

As we already know from previous sections, the signators of the Declaration of Independence accused George III of attemting to establish a tyranny by consolidating his control over the legislative, executive, and judicial powers. These are the specific accusations made regarding his attempt to control judicial powers:

- He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. - He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries. - For protecting them [armed troops], by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states. - For depriving us, in many cases, of the benefits of trial by jury. - For transporting us beyond seas, to be tried for pretended offenses.

- [|Colonial Courts].


 * Federalist and Anti-Federalist Papers**.

As we also know, the Federalist and Anti-Federalist Papers contained arguments for and against ratifying the Constitution. Many of the arguments focused specifically on the design of each of the institutions. Issues concerning the judiciary were outlined in the following sets of papers:

- [|Fed 78] - [|AntiFed 78 - 79]: The Federalist Paper, written by Hamilton, states that previous papers had adressed the need for a federal judiciary -- that the lack of one was one of the principle defects of the Articles of Confederation -- and the reason why federal judge and justices needed to be appointed. Anti-Federlalists had complained about service during good behavior, lifetime tenure. While it may be a good idea in a monarchy where the king serves for life and is replaced by his progeny, it places far too much power in the hands of judges. The courts had to answer to no temporal authority whatsoever. Their errors cannot be corrected. Hamilton responds to this allegation with one of the more noteworthy passages in the Federalist Papers:

//Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, 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 upon the aid of the executive arm even for the efficacy of its judgments.//

The judiciary is the weakest branch and cannot successfully attack the other two. On the other hand, it can be easily attacked by either of the other two, and if that occurred, then the judiciary would then be dangerous. The mixture of judicial ppower with executive or legislative power could lead to tyranny. The judiciary must be independent of the other two branches. Limited tenure in office would make it dependent on the branch that appointed it. Hamilton goes on to state that judiciary must posses both the power to interpret the law and to overturn legislative acts that violate the Constitution. Thsi provides the theoretical basis for judicial review. Only a judges that serve permanently can attain the strength to keep Congress in its place.

- [|Fed 79]: Hamilton continues his support for the Constitution's design of the judiciary by discussing the need for their pay. The salary can go up, but it can't go down. Since occupants are likely to serve for many years, this allows for an upward adjustment in case of inflation. But judges cannot be controlled by legislative manipulation of their pay. They can't be pressured or threatened. For Hamilton this reaffirmed Congress' independence. Anti Federalists were concerned about the competence of judges and the fact that no provision in the Constitution allowed for a judge to be removed, or have his pay reduced, due to incompetence. Hamilton argued that longevity was more likely to guarantee quality judges than periodic rotation in office. The Anti-Federalists remain convinced that the Constitution makes the judiciary the supreme branch sinc there is no opportunity for their decisions to be checked either by the other two branches or by the people.

- [|Fed 80] - [|AntiFed 80]: These papers concern the powers of the judiciary, specifically their jurisdiction. What types of laws do they have the ability to pass judgement over, what types of cases can they hear? Brutus, the Anti-Federalist writer, complains that they language is vague and that different people learned in law might come to different conclusions about what these powers in fact mean. Brutus is especially concerned about equity and the degree to which judicial decisions based on equity will allow for the national judiciary to further expnd the powers of the natioa government at the expense of the states.

- [|Fed 81] - [|AntiFed 81]: These papers concern the design of the judidiary, specifically the partitioning of it into a Spreme Court and into various, as yet to be determined, inferior courts.

- [|Fed 82] - [|AntiFed 82]: Hamiton and Publius discuss whether the national court system woudl eventually supercede the state court systems. Would national law, made applicable to the states, force state laws to fit one mold?

- [|Fed 83] - [|AntiFed 83]: These concern the lack of a guarantee for jury trials in civil trials. This ommission was rectified in the 7th Amendment.

Spring 2009 students
 * Assignments**

Internet Students, write at least 150 words on each of the following:

1. What was the Star Chamber, why was it argued to be abusive and what design features made it so? 2. Outline the differences between common, statutory and constitutional law. 3. Below you see the grievances made in the Declaration of Independence regarding judicial power. The colonists complained about these actions, but what exactly is problematic about them? Describe why each can be said to be abusive. Might there be an argument to make on the other side?


 * Written Questions for Summer 2009 Online Students:**

1. Read up on the Star Chamber, see links below. Note the relationship between the executive and judicary. What does the Star Chamber tell us about the importance of judicial independence. 2. At the bottom of the page you will notice a list of the grievances in the Declaration of Independence regarding judical powers. Try explaining why each of these was considered important enough to consider a grievance.

Unless otherwise noted, you'll need at least 150 words to answer each question. Due midnight August 2nd.