POLICE STATE: Role of the Courts

The judicial branch of American government, in particular the Supreme Court, has for the most part served as a crucial counter to the development of a police state. This is due to the nature of the courts as interpreters and defenders of due process and accountability as required by the U.S. Constitution.

Since Marbury vs. Madison (1803), the power of the Court has resided primarily in its ability to serve as an arbiter. Major decisions such as Gideon vs. Waitwright (1963), New York Times Co. vs. Sullivan (1964) and Miranda vs. Arizona (1966), have served to restrict, rather than expand, governmental power. Or, take the recent ruling on Guantanamo -- rather than enforce its own determinate rule, the Court has now forced Congress to act, ultimately handing power back to the voting public.

In doing so, the court forces a sometimes feckless and indecisive Congress to strike a balance between two indispensable imperatives. One the one hand, Congress must legislate. On the other hand, in doing so, Congress must honor the rights set forth in the Constitution. Case in point: the Bush Administration's turn yesterday to Congress about rewriting the Guantanamo laws.

Recent history shows that Congress fails to guard these rights both when it fails to make decisions and also when it allows the executive branch, rather than the people and the Constitution, to dictate legislation. In either case, the executive branch ends up setting the rules by which it operates, akin to allowing one’s children to decide their own bedtime.

The courts best protect liberty by reeling in an overzealous executive branch. Accountability implies an independent standard. In the recent decision on Guantanamo, the Court decided that an independent legislative measure was needed in order to assess the performance of the executive branch. The point was that the executive branch should not make its own rules, because in doing so it would not be constrained by any rules. No checks, no balances.

The Supreme Court is, as must be expected, far from perfect, and it the award goes out to erudite readers who submit examples as comments of the judicial branch actually harming American freedoms - have the courts permitted, or even ruled in favor of abuses of federal and state power?