On this 250th anniversary of the Declaration of Independence, attention will rightly be focused on its majestic affirmations that “all men are created” and that governments exist to secure God-given rights. But those who signed the declaration understood that the protection of their liberty depended on a properly functioning judiciary.
The declaration lists the revolutionaries’ grievances against the king, among them critiques of the Crown’s handling of colonial courts, judges and juries. For the founders, a judiciary could best serve as a protector of liberty if it was resistant to political pressure, interdependent with the political branches and connected to the public whom it serves.
In other words, a judiciary should be independent from politics, dependent on law, and accountable to the people. It is tempting to value courts only when they produce outcomes we like, but we should not take for granted the well-functioning judiciary we have inherited.
An emphasis on healthy judicial independence
“He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries,” the founders wrote in the Declaration of Independence.
Despite healthy judicial independence in Great Britain proper, the Crown repeatedly rejected efforts by colonial legislatures to limit the king’s ability to fire judges. The king also began to set and pay colonial judges’ salaries, replacing colonial legislatures. The colonists found this change so offensive that Massachusetts’s legislature even impeached a judge for accepting this new salary.
These pre-Revolutionary fights did not resolve the ideal judicial structure, but they crystallized the colonists’ concern about partial courts and highlighted the wisdom of the English model of judicial independence.
The Constitution embedded that independence in our fundamental law. Judges hold their positions for life subject to good behavior and are guaranteed a continued salary. This structure seeks to ensure that judges are not beholden to the president or majorities in Congress, but rather are free to rule impartially.
How the judiciary gets its power
“He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers,” reads the declaration.
Despite the colonists’ insistence on an independent judiciary, they did not envision an all-powerful judiciary. On the contrary, they acknowledged that the judiciary would be powerless without the assistance of the political branches.
Two hundred and fifty years ago, the founders fought for their independence in part from a desire for a well-ordered judiciary.
When the Crown and North Carolina disagreed about the scope of power of colonial courts, the Crown rejected all proposed legislation creating and funding a court system. North Carolina was left without courts for months and was thrown into chaos for longer. The colonists were incensed, accusing the King of affirmatively obstructing justice.
Yet, there was little doubt that the judiciary was powerless without valid legislation establishing and funding courts. Once granted jurisdiction, the judiciary could enforce preexisting law with rigor, but it was powerless to assert its own power.
The Constitution left the judiciary similarly vulnerable. It gave the judiciary only the “judicial power,” left structural design to Congress and gave the president and the Senate the power to appoint judges. The judiciary, powerful within its sphere, depended on the political branches for its jurisdiction, the law it was to apply and the execution of its judgments.
Juries help instill judicial accountable
“He has … depriv[ed] us in many cases, of the benefits of Trial by Jury,” reads the declaration.
Within the judiciary’s sphere, accountability came from a political appointment process, the backstop of impeachment and juries. Impeachment and appointment are blunt tools of accountability, but juries were considered a case-specific check on judicial tyranny.
The king enforced parliamentary acts expanding civil courts that did not have juries and held criminal jury trials in England rather than in America. The colonists objected, and later the Constitution itself required that criminal jury trials take place where the alleged crime was committed.
On America’s 250th, we should pause to reflect on how blessed we are to have the judiciary we have — and to continue the fight to keep it.
It was less clear how to protect civil juries, though. Civil juries functioned differently in every state, and no one knew what federal courts Congress would eventually create. Ultimately, though, the Bill of Rights locked in the right to a civil jury trial in federal courts.
Courts’ application of law was to be checked, in many instances, by a jury of local laypeople.
The founders fought for a well-ordered judiciary
Two hundred and fifty years ago, the founders fought for their independence in part from a desire for a well-ordered judiciary. In many ways, a similar metaphorical fight wages on.
Today, we see clamoring that courts should bow to political pressure in the name of legitimacy. Courts sometimes assert their own power instead of heeding their constitutional limits. And jury trials are shockingly rare.
It can be attractive to sacrifice what makes our judiciary great for a temporary political gain. On America’s 250th, we should pause to reflect on how blessed we are to have the judiciary we have — and to continue the fight to keep it.