Many, if not most, people (regardless of their profession and occupation) feel they have little power to change laws respecting the expansion of individual liberty and rights. Our laws are governed first by our constitutions: state constitutions control state laws and the United States Constitution controls federal laws–and to some degree, state laws. These fundamental documents provide the framework for how government operates and how laws are passed and enforced. The branch of government designed to pass laws is the legislative branch; the branch designed to enforce laws is the executive branch; and the branch designed to interpret and apply laws is the judicial branch. While these branches act independently of each other, the people have ultimate power to change how government operates and how laws can be applied.
Even though our constitutions provide the basic framework of government limitation, the practice of government and law reveals that the judicial branch has tremendous power to expound upon and apply constitutional provisions. Over time, court decisions put flesh on the bones of the constitution. The more general in nature the constitutional provision, the more flexibility courts have in interpreting and applying the law. Since there is more than one way of interpreting law, including our constitutions, the development of constitutional law can take a variety of twists and turns. The more time that passes, the more changes can be made by courts in applying our constitutions.
Thus, when it comes to limiting government power, the people may become dissatisfied with how courts interpret those laws designed to protect the people. This dissatisfaction could relate to how courts apply the Second Amendment—a more obvious and notable body of law to the public; but it may relate to a less-known body of law relative to criminal and civil procedure. For example, many people may not be aware of how federal courts have limited an accused’s rights of discovery in a criminal case until that person has been charged.
When people study court decisions, they can determine if they believe the court decisions on a particular area of law or concerning particular rights protect individual liberty and limit government sufficiently. When a sufficient number of people realize that the way court decisions have interpreted the constitution does not protect liberty or sufficiently limit government, they can educate others about that body of law and work to changing those court decisions.
So, how do the people change court decisions that do not sufficiently protect liberty and limit government? There are two basis ways. First, people can elect legislators who believe similarly and who are willing to pass legislation to effectively overturn court decisions through statute. While not all court decisions are subject to being overturned by statute, many decisions can be overturned by statute. Second, people can amend our constitutions to overturn bad court decisions. The Founding generation did this with, for example, the Eleventh and Fourteenth Amendment. The Eleventh Amendment to the USC amended a United States Supreme Court decision in Chisholm v. Georgia, 2 U.S. 419 (1793), which stated that States can be sued in their sovereign capacity by individuals. The Eleventh Amendment overturned that decision. The Fourteenth Amendment overturned, among other decisions, the United States Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 (1857) that said black Americans could be denied citizenship.
While there are some who claim that all people have to do is “enforce” the constitution and that people need not amend the constitution or the law to correct court decisions, the practice and history of America’s constitutional system proves otherwise. The Founders and other pivotal generations knew this, which is why they amended the constitution.
People are the ultimate source of political power. The constitution was designed to create government, and government has certain powers to act regarding law. It so happens that the judicial branch is given the power to interpret and expound the meaning of the constitution, which James Madison and Alexander Hamilton recognized in the Federalist Papers. For example, Hamilton said, “[l]aws are a dead letter without courts to expound and define their true meaning and operation…Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations” (Federalist Paper 22).
Until the people make such changes in the law through statute or the constitution, courts will continue to expound the law within their powers. This means that every time issues are raised in court in an effort to more sufficiently limit government power, courts will decide the issue based on judicial methods of interpretation. One well-known way of interpreting law is by applying previous cases (known as precedent). Precedent is given heavy weight, especially when the precedent comes from a higher court. Thus, previous decisions that do not adequately protect liberty or limit government power will self-perpetuate, and people will have little success in changing the law to their benefit. People can argue all they want in court about how they believe the constitution should be applied, but their efforts will likely be fruitless in court.
In sum, people have a responsibility in a free society to study court decisions in all areas of law that affect our rights and liberty. When they realize that the courts’ decisions do not adequately protect our liberty and rights, the people have a duty to take necessary steps in changing that law through statutes or amending the constitution. When these changes are made to our system of government, it has tremendous impact in changing the course of how laws are applied. To do nothing about bad court decisions is to implicitly consent to how courts decide those issues.
Self-government: it’s a powerful concept, but it only works when people understand the system and do what it takes to change it.