By Micaela Delfino
As Yale Law Professor Akhil Reed Amar most accurately points out, American history is key to understanding the Constitution, and in this case, the Constitution is a reflection of the American Revolution.
Congress will have the power to tax and regulate, it is going to be much more representative than the Congress in the Articles of Confederation, because that was the goal of the Revolution: no taxation without representation. The Executive Branch, who will have no ruling king but instead a presidency that has some virtues of the English monarchy, like its stability in foreign affairs, a strong military leadership and national security but with democratic elections, impeachment and checks and balances.
Section I, Article III of the Constitution, establishes that the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish and it shall extend to all classes, in law and equity. The trial of all crimes, except in case of impeachment, shall be by jury, and such trial shall be held in the state where said crime has been committed, but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. The article continues to guarantee that every person accused of wrongdoing will have the right to a fair trial before a competent judge and a jury of one’s peers.
However, the Judicial -that started out as the last branch-, has gained power over time for one simple, yet quite complicated reason: politics. Presidents and Congress sought from inception justices that would enforce a political order or point of view. One prominent example, Professor Amar mentions the pro-slavery nature of the Constitution, and the manner in which southern states exercised political power to protect slavery.
The power of this branch grew over time as individuals such as Marshall and Hamilton interpreted the power of the Judicial Branch to review the constitutionality of the laws made by Congress. History shows that initially the Judicial branch begun with questionable power in comparison to the other branches but in time its power grew to insure the democracy, national security, and pro-slavery tendencies of the early government.
Times have changed since the American Revolution and so has the distribution of power between the three branches, which had to metamorphose to adapt to these modern times. And it had to do so because if not, the system of checks and balances might have been unbalanced. Following that scenario, the first two branches -often the Executive, as it was for Argentina’s 12-year-experience-, would be able to behave unconstitutionally with no opposing power to control or stop them, as we can observe in numerous other nations around the globe.
Nonetheless, the question remains, “Should the judges have this increasing power?” and the answer has to do with accountability. Every branch of government can be more or less held accountable for what it does, but is the Judicial branch under the same accountability as the Legislative and the Executive branch?