Rule of Law IV – John Frost

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Rule of Law, IV
The Great American Experiment – John Frost

(This is the fourth in a series dealing with fundamental concepts underlying the Rule of Law as applied to the American Experiment in governance. The previous installments dealt with Joseph Raz and his concepts of “social justice” and “moral pluralism.” Now observations on the court system.

Article III of the United States Constitution established the Supreme Court and defined its composition. The Judicial act of 1789 further structured the composition of the Federal Court System. Of course, each original territory and state created their own court systems which are generally similar but can vary in structure and powers from state to state. The Federal Court System has supremacy over state systems. Over time the District Courts evolved in jurisdiction and reach. Of course, politics has entered the court system and the most common complaint is that often the courts, in their legitimate decisions, may infringe on the lawmaking powers of the Congress and the executive powers of the President. Landmark social and moral decisions have had pervasive impact on American Society (abortion, discrimination, death penalty, gun control, the ACA, well, you get the idea.)

Additional courts have evolved with special purposes. There are Appeals Courts. There are any number of administrative panels which function as courts by making judgements, resolving disputes, and interpreting law as well as writing regulation. There is the Pardon and Parole Board, the Corporation Commission, and so on. In my view, this is a sign of a orderly, civilized society espousing adherence to the Rule of Law.

Obviously, the sheer size and reach of the judicial system may give rise to abuse which may call into question the uniform application of the Rule of Law. Certain judgeships are lifetime appointments. Others require retention ballots by the voters. One may find that certain powerful courts whose judges are appointed are “stacked” with judges with a bent one way or the other. This often gives rise to shopping for a favorable District Court when filing suits and appeals. This draws national attention particularly at the Supreme Court level. The appointment process begins with a nomination by the President, followed by the Judicial Committees of both Houses of Congress and then a full vote by the members. Inevitably, politics is involved reflecting judicial philosophy and the potential interpretation of the Law.

Perhaps, the greatest criticism of our current court system is the impression that matters before the courts move at a snail’s pace. There are pros and cons to be considered when deciding the effect of a slow-paced legal system. Many decisions are so grave and far-reaching whose effect may last for generations should be decided after careful and long deliberation. At the same time, frivolous lawsuits often make the system unworkable.

Nevertheless, in America, the Rule of Law is viewed with absolutely necessary for the survival of our country, our civilization and our personal well being.

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