The 2000 election prompted a piece of discourse that explained our concept of fairness—or equity—within our system of government. It was a time when people wanted to discount the Electoral College, a time when the presidency of this nation was bounced around in the Florida and in Federal Courts, and ultimately decided in the Supreme Court of the United States.
The following piece addresses the roots of our current system not with regard as to why we have separation of powers, but as to why they are not distinct.
If you thought that the last time you would have to hear the term separation of powers was in your high school civics class, then the 2000 presidential election certainly spoiled that plan. While the emotional argument in Florida is to count every vote; the real issue at stake is the distribution of power in the entities of our American government. Our system of government sets up three ongoing battles for domestic power. The first revolves around those powers or rights reserved to individuals and those relinquished to various levels of the government. Next, the Constitution divides powers between the federal government and the several states. Finally, power is distributed among the executive, legislative, and judicial branches. This distribution is nearly mirrored at the federal and state levels. It is this last distribution of power which is the source of most conflict.
Our constitution begins with a noble preamble that enumerates the general scope of our government. Unfortunately, it jumps directly from the purpose to Articles I, II, and III which establish the Legislative, Executive, and Judicial branches without an overall concept of operations. These articles empower and limit but do not generally define how conflicts between branches will be resolved. There are some exceptions, specifically enacting legislation, filling vacancies, and impeachment; but as a whole the constitution focuses on three separate entities with little attention paid to boundaries and interaction. This does not diminish the value of what the founding fathers provided us. Our Constitution has served us well for 224 years with only infrequent modification, but to truly understand it, we must examine a piece of history that goes beyond our shores
Our founding fathers were less focused on specific boundaries for each of the branches than they were with providing a lasting foundation that separated them. They dealt first hand with a monarchy that had gradually and begrudgingly divested itself of total sovereignty. The Magna Charta was not a government reinvented from the ground up, but a milestone in power wrestled from a monarch. While the most visible struggle in British Constitutional History is arguably that between the monarch and the parliament; perhaps the most applicable to our government is that of the Chancellor and his equitable powers.
About the same time that America was discovered and colonization began, England faced mounting problems with its laws. Statutory law was in its infancy and common law was the preponderance of the judicial foundation. Unfortunately, common law did not provide remedies in many situations, most of them arising out of property arrangements. Such remedies could only be obtained from the monarch, or his chief minister--the chancellor. The chancellor was a unique individual. He governed in the king's council, had some jurisdiction over the common law courts, and represented the king's conscience. He could provide extraordinary relief that the courts could not. He could provide equity. Equity in its broadest sense denotes the spirit of fairness and justness. It is justice ascertained by natural reason or ethical insight but independent of the formulated body of the law.
The chancellor was often a bishop, well schooled in Roman and Canon law. When he found nothing in the common law, he relied upon his ecclesiastic training to provide a remedy. In the British power struggle, the chancellor was perceived as a threat to both parliament and the common law courts. While the chancellor exercised both legislative and judicial authority, he was primarily an extension of the monarch--the executive. As the British system evolved, the equitable powers of the chancellor became less intrusive to the other branches of government through the adoption of equitable principles. Eventually, precedent carried greater weight than individual discretion. This self regulation of the chancery preserved its existence.
When the Constitution of the United States was formulated, equitable power was placed exclusively in the judiciary. What had crossed functional areas in the British system was now reposed in a single branch. What had originally been executive power restrained by the parliament was now wholly vested in one branch of our government. Such a history does not make for a restrained court system. The equitable jurisdiction of the chancellor allowed him to step across functional boundaries to provide remedies. Even though equity has become much more formalized and governed to a very significant degree by precedent, its roots belie its restriction to a single branch. Equity is the province of the sovereign and resists division.
I advocate judicial restraint and recognize that such a conservative approach will sometimes create selective injustices. That is, the court system will not always be able to provide a remedy. Sometimes, the judiciary must simply wait for the legislature to create a remedy in law. My position is backed by a strict interpretation of the Constitution. Some courts are more active and generally are classified as liberal or activist. They always seek to find a remedy. Their legitimacy is not found in the Constitution but in the history of common law and the equitable jurisdiction of the chancellor. In a government where power is consolidated in a monarch or dictator, there is no conflict. In a government that has separated basic government functions to prevent tyranny, conflict is inherent in the organization and aggravated by assigning powers not divisible by three to a single branch.
I can offer no alternative without increasing the risk of excessive power consolidated in the executive branch or diluting the power of each branch to impotence. Equitable power is the free safety of football or the rover in softball. It instinctively moves to fill a void in power. It is generally constrained to follow precedent but not restrained by it when new remedies are required. It can serve as the oil that lubricates the wheels of our government or it can grind that same government to a halt to effect an individual remedy. It provides comfort that imperfections will be overcome and anxiety over what those unknown remedies will be. Equity recognizes the divisions of our governmental system but knows no timidity when testing their boundaries. While our founding fathers greatest fear was that a government of the people would surrender their plenary power to a power hungry executive; it is the tool of the monarch's first minister--the equitable power of the chancellor--that is the wild card in our system of government. That power is vested in the judiciary, but by its very nature must venture elsewhere.
With such a natural disposition to cross functional boundaries, why would I advocate restraint in a judiciary vested with equitable powers? The very nature of equitable power in 14th century Britain was nearly its undoing. The equitable power of the chancellor threatened both parliament and common law courts, but instead of an overt power struggle, equity limits were subtly restrained. Such restraint was not by the parliament or the courts but by the nature of the equitable power itself. It offered remedies not elsewhere available and the chancellor's court was quickly overwhelmed. Remedies that supplanted other alternatives available from the government were self defeating. The most viable solution was self restraint. Rigidity and precedent became the rule and new remedies in equity were reserved for the truly extraordinary case.
Equitable power became formalized and survived the power struggles of our ancestors. While the philosophical composition of any court may cause it to test the boundaries of power; it is equity that invites a judicial body to boldly journey into the roles of legislator and executive. Those exercising such equitable power know that every such venture comes with the concomitant that it may be the very event that topples the delicate balance of separated powers. Such power must be wielded with exceptional restraint.
The following piece addresses the roots of our current system not with regard as to why we have separation of powers, but as to why they are not distinct.
Why Separation of Powers is Not Distinct
Our constitution begins with a noble preamble that enumerates the general scope of our government. Unfortunately, it jumps directly from the purpose to Articles I, II, and III which establish the Legislative, Executive, and Judicial branches without an overall concept of operations. These articles empower and limit but do not generally define how conflicts between branches will be resolved. There are some exceptions, specifically enacting legislation, filling vacancies, and impeachment; but as a whole the constitution focuses on three separate entities with little attention paid to boundaries and interaction. This does not diminish the value of what the founding fathers provided us. Our Constitution has served us well for 224 years with only infrequent modification, but to truly understand it, we must examine a piece of history that goes beyond our shores
Our founding fathers were less focused on specific boundaries for each of the branches than they were with providing a lasting foundation that separated them. They dealt first hand with a monarchy that had gradually and begrudgingly divested itself of total sovereignty. The Magna Charta was not a government reinvented from the ground up, but a milestone in power wrestled from a monarch. While the most visible struggle in British Constitutional History is arguably that between the monarch and the parliament; perhaps the most applicable to our government is that of the Chancellor and his equitable powers.
About the same time that America was discovered and colonization began, England faced mounting problems with its laws. Statutory law was in its infancy and common law was the preponderance of the judicial foundation. Unfortunately, common law did not provide remedies in many situations, most of them arising out of property arrangements. Such remedies could only be obtained from the monarch, or his chief minister--the chancellor. The chancellor was a unique individual. He governed in the king's council, had some jurisdiction over the common law courts, and represented the king's conscience. He could provide extraordinary relief that the courts could not. He could provide equity. Equity in its broadest sense denotes the spirit of fairness and justness. It is justice ascertained by natural reason or ethical insight but independent of the formulated body of the law.
The chancellor was often a bishop, well schooled in Roman and Canon law. When he found nothing in the common law, he relied upon his ecclesiastic training to provide a remedy. In the British power struggle, the chancellor was perceived as a threat to both parliament and the common law courts. While the chancellor exercised both legislative and judicial authority, he was primarily an extension of the monarch--the executive. As the British system evolved, the equitable powers of the chancellor became less intrusive to the other branches of government through the adoption of equitable principles. Eventually, precedent carried greater weight than individual discretion. This self regulation of the chancery preserved its existence.
When the Constitution of the United States was formulated, equitable power was placed exclusively in the judiciary. What had crossed functional areas in the British system was now reposed in a single branch. What had originally been executive power restrained by the parliament was now wholly vested in one branch of our government. Such a history does not make for a restrained court system. The equitable jurisdiction of the chancellor allowed him to step across functional boundaries to provide remedies. Even though equity has become much more formalized and governed to a very significant degree by precedent, its roots belie its restriction to a single branch. Equity is the province of the sovereign and resists division.
I advocate judicial restraint and recognize that such a conservative approach will sometimes create selective injustices. That is, the court system will not always be able to provide a remedy. Sometimes, the judiciary must simply wait for the legislature to create a remedy in law. My position is backed by a strict interpretation of the Constitution. Some courts are more active and generally are classified as liberal or activist. They always seek to find a remedy. Their legitimacy is not found in the Constitution but in the history of common law and the equitable jurisdiction of the chancellor. In a government where power is consolidated in a monarch or dictator, there is no conflict. In a government that has separated basic government functions to prevent tyranny, conflict is inherent in the organization and aggravated by assigning powers not divisible by three to a single branch.
I can offer no alternative without increasing the risk of excessive power consolidated in the executive branch or diluting the power of each branch to impotence. Equitable power is the free safety of football or the rover in softball. It instinctively moves to fill a void in power. It is generally constrained to follow precedent but not restrained by it when new remedies are required. It can serve as the oil that lubricates the wheels of our government or it can grind that same government to a halt to effect an individual remedy. It provides comfort that imperfections will be overcome and anxiety over what those unknown remedies will be. Equity recognizes the divisions of our governmental system but knows no timidity when testing their boundaries. While our founding fathers greatest fear was that a government of the people would surrender their plenary power to a power hungry executive; it is the tool of the monarch's first minister--the equitable power of the chancellor--that is the wild card in our system of government. That power is vested in the judiciary, but by its very nature must venture elsewhere.
With such a natural disposition to cross functional boundaries, why would I advocate restraint in a judiciary vested with equitable powers? The very nature of equitable power in 14th century Britain was nearly its undoing. The equitable power of the chancellor threatened both parliament and common law courts, but instead of an overt power struggle, equity limits were subtly restrained. Such restraint was not by the parliament or the courts but by the nature of the equitable power itself. It offered remedies not elsewhere available and the chancellor's court was quickly overwhelmed. Remedies that supplanted other alternatives available from the government were self defeating. The most viable solution was self restraint. Rigidity and precedent became the rule and new remedies in equity were reserved for the truly extraordinary case.
Equitable power became formalized and survived the power struggles of our ancestors. While the philosophical composition of any court may cause it to test the boundaries of power; it is equity that invites a judicial body to boldly journey into the roles of legislator and executive. Those exercising such equitable power know that every such venture comes with the concomitant that it may be the very event that topples the delicate balance of separated powers. Such power must be wielded with exceptional restraint.
