The Nature of Judicial Power
by Herbert W. Titus
I really appreciate the opportunity to have worked on this particular topic. It is interesting that when you teach in an area like I do in Constitutional Law and have never really come to focus upon a topic such as judicial power in the way that the title of what I’m going to share with you today required me to do, I am amazed how much I learned from just focusing upon an issue in a different way than I had before. So often what happens when you teach something like Constitutional Law is you come to address questions from the perspective of the Constitution, rather than from the perspective of the way that this series is structured, and that is from the perspective of the laws of nature and of nature’s God.
One thing that we’re learning here at [Regent] University is that you cannot ignore the charter of the nation, the Declaration of Independence. As a matter of fact, we were talking about this yesterday and at the end of the Constitution, the signers acknowledged that the Constitution was signed in the twelfth year of the establishment of the nation of the United States. They knew that the Constitution wasn’t the establishing document. The establishing document was the Declaration of Independence because, indeed, they were in the twelfth year of the Declaration of Independence. So they themselves traced the establishment of the nation to the Declaration. And if that’s true, then whatever is in the Constitution must be traced back to that establishing document and that, of course, goes back to the laws of nature and of nature’s God.
I’m just going to give you some idea of where we’re going to go and then I’m going to launch into it. I’ll have a short introduction, but what I will be doing is talking to you in basically three parts. The first part will be the three kinds of government power. That is, we’ll be talking about the law of nature of separated powers. Then the second part will be to focus specifically upon the judicial power, and that will be the law of the nature of judicial power. And then finally I will speak to you about the law of the constitutional limitations on judicial power. Now each of those three major parts will have three sub-parts, and I will try to indicate to you as I go what those sub-parts are so you’ll be able to follow me, I hope, a little more carefully.
Roe v. Wade, the United States Supreme Court pro-abortion opinion, has many critics. One of its most persistent is United States Supreme Court Justice Byron White. A 1962 appointee of President John F. Kennedy and a democrat from Colorado, Justice White in his dissenting opinion to the majority in the Roe case said the following: “As an exercise of raw judicial power, the Court perhaps has authority to do what it has done today, but in my view its judgment is an improvident and extravagant exercise of the power of judicial review which the Constitution extends to this Court.” Now many opponents of the Roe v. Wade decision have used this statement to support their criticism of the majority opinion. As one of those critics, I have quoted it myself. In doing so, those, including myself, who have used it have unwittingly affirmed several foundational assumptions of the majority opinion that we so desire to be overturned.
On another occasion I took the opportunity to correct another mistake that I, and I believe others, have made in the objections to Roe v. Wade. For several years I claimed that while Roe v. Wade had made the right to obtain an abortion the law of the land, it was bad law. It should be overruled. But upon more careful reflection, I realized that the Court’s opinion is not bad law. It is not law at all. As Sir William Blackstone so ably put it over 200 years ago, if it be found that a decision of a court is manifestly absurd or unjust, that is, contrary to reason, contrary to divine law, it is declared not that such a decision was bad law, but that it was not law.
Indeed, the framers of Article VI of the United States Constitution followed Blackstone when they wrote that the Constitution was intended to be the supreme law of the land. Today most of us read this commitment of our forefathers as if they were writing about gasoline in cars, a desire to run the government machine on high-grade premium, supreme. But a recognition that given our current circumstances, we will drive it on regular. No, that’s not what they meant. Our forefathers believed that the Constitution that they had so labored over embodied the law of the land, all legislative enactments, executive actions, and court opinions to the contrary notwithstanding. Notwithstanding as law at all.
So Roe v. Wade is not law. It is contrary to divine law that protects innocent life, to reason and the Constitution. Now permit me to return to the statement of Justice White. First, he claimed that the Court in Roe v. Wade exercised raw judicial power. At the same time he conceded that perhaps it had the authority to do it. Second, he allowed that the Court’s judgment was an exercise of power of judicial review extended by the Constitution to the Court, but that was improvident and extravagant.
I doubt if Justice White when he chose the word “raw” meant to convey to us that the majority had not fully cooked its opinion. Although someone like Art Buchwald could have fun with that word and suggest in one of his columns that Justice White thought his colleagues to be half-baked. I doubt also if Justice White used “raw” in the way that we often do when talking about a disagreeably damp or cold day or wind. Although, again, the day upon which the Court rendered Roe v. Wade is indeed a bleak day in the history of America, not only for the millions of unborn babies who have been killed in its name, but for a nation whose record theretofore had always been officially, at least, committed to the protection of innocent life. Could it be, however, that Justice White meant by “raw” that what the majority had done was to exercise judicial power in its natural state, but unbound, uncorrected by good editing, as if the opinion were the first draft of a Masters Thesis at [Regent] University?
Well, professional eyes that are more trained than I have exposed the opinion’s lack of sound historical and legal underpinnings. But I want to concentrate on another possible meaning of the word “raw.” The third meaning given in Webster’s International Dictionary, “having the skin removed, so that the underlying tissues are exposed,” like a “raw” wound. Not knowing his precise meaning, I’ve chosen this one because I believe that a close examination of the majority opinion in Roe as an exercise of judicial power reveals not an improvident or extravagant exercise of such power, not a bad use of such power, but no exercise of judicial power at all.
Going into the first section, the law of separated powers. There are three kinds of government power and of course, as my brother Joe Kickasola so beautifully began our session, we have Isaiah 33:22 to give us testimony that indeed there are three kinds of power. “For the Lord is our judge,” judicial power. “The Lord is our lawgiver,” legislative power. “The Lord is our king,” executive power. Now what’s interesting about Isaiah 33:22 is not only that it is a descriptive statement of the three kinds of power – judicial, legislative and executive – but it is also a normative statement of its execution. It also contains a statement of law. And indeed, it contains a promise that God as our judicial, legislative and executive authority will exercise it lawfully because it concludes, “He will save us.”
Of course, the testimony of Jesus Christ as the King of kings, the one with all three kinds of power, a testimony that indeed he will fulfill perfectly the law of the judicial, legislative and executive power, is found in Isaiah 51:4-8. Let me read it to you, “Pay attention to me, oh my people, and give ear to me, oh my nation. For a law will go forth from me and I will set my justice for a light of the peoples.” The legislative power will be exercised lawfully, that justice will be embodied in the law. Then verse 5, “My righteousness is near, my salvation has gone forth, and my arms will judge the peoples, the coastland will wait for me, and for my arm they will wait expectantly.” He will judge the peoples perfectly. He will apply that perfect law in a perfect way and make known the judgment of the Lord. And then in verses 6-8, He will execute that judgment perfectly.
Lift up your eyes to the sky then look to the earth beneath. For the sky will vanish like smoke, and the earth will wear out like a garment, and its inhabitants will die in like manner. But my salvation shall be forever and my righteousness shall not wane. Listen to me, you who know righteousness, a people in whose heart is my law, do not fear the reproach of man, neither be dismayed at their revilings. For the moth will eat them like a garment and the grub will eat them like wool. But my righteousness shall be forever, and my salvation to all generations.
Now what’s important here to see is that the Bible calls us as God’s people to exercise legislative, executive and judicial power in accordance with law. Paul writes of that in Romans 13. Let me refer specifically to verse 1 and verse 4 in that particular Scripture, “Let every person be in subjection to the governing authorities, for there is no authority except from God, and those which exist are established by God.” That is, God establishes legislative, executive and judicial authority in the civil order as he does in his own created world, including the civil order.
And then, of course, in a summary fashion in verse 4, “For the civil ruler is a minister of God to you for good, but if you do what is evil be afraid, for it does not bear the sword for nothing, for it is a minister of God, an avenger who brings wrath upon the one who practices evil.” So whether you hold judicial, executive or legislative authority, you are but a minister of God and therefore bound as such a minister to the law of God.
The example that God gives us in the civil realm, in the nation realm, comes from his chosen nation, the nation of Israel. Let me summarize to you that in the nation’s life, the exercise of judicial and legislative and executive power is found throughout the books of the Old Testament. But just simply as an example let me call your attention and refresh your recollection with the exercise of judicial power which is illustrated in Exodus 18:16, when Moses in response to Jethro, his father-in-law, indicated that he exercised judicial power. Verse 16, “When they have a dispute, it comes to me and I judge between a man and his neighbor and make known the statutes of God and his laws.” So Moses as the judge of Israel exercised judicial power.
But also as the judge of Israel, he exercised legislative power. That is, he was the lawbearer as well as the one who applied the law to specific disputes. We learn that from Exodus chapter 20 where Moses was given the Ten Commandments. And if you remember, Moses bore those Ten Commandments and gave them to the people. We find not only the law of the Ten Commandments, but the various specific conventional applications of that law typified by Exodus 22:1 with regard to the five ox for one ox and the four sheep for one sheep, in applying the law of the just sanction in that particular kind of situation.
Finally we find in Exodus, this time in chapter 17, that Moses as judge also exercised executive power. There if you recall, in the battle against the Amalekites, we see Moses as commander-in-chief of the army. He is the one who is standing apart from the battle, but the one who is seeking the victory that can come from the Lord. If you remember, he is the one whose arms are lifted up while the battle is being carried on. Of course, it was Moses as the judge who led the people into Israel as commander-in-chief in Exodus 17:8-13.
What is interesting here is that in the early history of the nation of Israel, the three kinds of government power were lodged in one office, the office of the judge. We find from Joshua to Samson that this exercise of power remained in the nation of Israel. But I want to contrast what happened to the exercise of those three kinds of power during that early history of the nation of Israel so that we can begin to see why it is that we have a law of separated powers, as contrasted to a law of separation of powers within one person.
In Joshua 1:8 we have this testimony of Joshua’s exercise of judicial, executive and legislative power. “This book of the law shall not depart from your mouth, but you shall meditate on it day and night so that you may be careful to do according to all that is written in it, for then you will make your way prosperous, and then you will have success.” We find in that particular testimony, in the testimony over into the second chapter of Judges, verse 7, “And the people served the Lord all the days of Joshua and all the days of the elders who survived Joshua, who had seen all the great work of the Lord which he had done for Israel,” that Joshua was true, not only to the three kinds of powers, but he was true of the law that governed those three kinds of powers.
But contrast that to what happened to the office of judge by the time that Samson exercised that power. And I don’t have time in this particular lecture to chronicle what happened to the law of separation of powers through the various judges as it deteriorated through the years. But listen to the testimony of Judges 16:28 and contrast it with Joshua 1:8: “Then Samson called to the Lord and said, Oh Lord God, please remember me and please strengthen me just this time, Oh God, that I may at once be avenged of the Philistines for my two eyes.'” What had happened, and Samson was given this power, is that it had become a power to be exercised for his own personal purposes, rather than for the purposes of the nation. So it is not surprising then that the conclusionary verse of Judges 21:25 is as follows: “In those days there was no king in Israel. Everyone did what was right in his own eyes.”
So when we come to that historical event that is chronicled in I Samuel 8 where the elders of Israel are complaining about the perversion of justice by Samuel’s sons, it is not surprising to see after such a legacy of generations that this law of separation of powers that had been lodged in one office was not functioning in the way that God had intended it to function. But as is typical of man when he sees the lawless exercise of power, in I Samuel 8 we learn that the elders want to substitute another lawless way to redeem the lawlessness of its own judges. And of course, as you know, God in his mercy, because through Moses in Deuteronomy 17 he prophesied that while the people asked for a king like all the other nations, he would not give them such a king, but he would give them a king under the law. And therefore Samuel, in I Samuel 10:25, wrote up the manner of the kingdom in a book, and God gave them a king, not like all the other nations had, but a king who was to rule according to the covenant law as Deuteronomy 17 prophesied.
So what we see once Saul became king of Israel is we begin to see that these separated powers are indeed separated by office, as well as by kind. Saul, as you recall, was given executive power, but he did not receive judicial power..The testimony of I Samuel 7:15-16 says that Samuel judged Israel all the days of his life, which included the days of Saul, and therefore the judicial power remained in the office of judge. But the executive power which the judge had theretofore exercised in Israel was transferred to the king. So we find Saul, not Samuel, leading the army against the Philistines in I Samuel 13. We find Saul, not Samuel, leading the army in I Samuel 15.
What’s important here is to see that the legislative power was not transferred to Saul. For I Samuel 15 indicated that Saul did not have authority to wage war any way he wanted to wage war. The war that God had ordained with regard to the Amalekites was a war of God’s judgment upon that nation, and therefore was governed by the law of such wars. And we find Saul in exercising executive power disregarding that law, sparing the king of the Amalekites, sparing the best of the sheep. And Samuel, in his judicial capacity, coming in and ruling that Saul had so violated the law of God.
The legislative power remained independent of the executive and independent of the judiciary. How it was exercised, I am not too sure from the Biblical record. It certainly had to be in conformity with the law that had already been given to the nation of Israel. There is only a suggestion in Joshua 9:15 and 18 that perhaps the elders or the princes of the congregation were given legislative power so long as that power was consistent with the revealed law of God as found in the Ten Commandments and in the laws of Moses. That’s the Biblical record of the law of separated powers, the law separating the three powers in three different offices.
From Bracton to Coke
Let me talk to you now about the common law heritage of the law of separated powers. I want to divide this into three parts, the first one is to chronicle the law of separated powers from Bracton to Coke. So I’m going to cover quite a bit of history in a very short period of time so I hope you bear with me. The thirteenth century, Bracton was the man who John C.H. Wu, a scholar of the common law, calls the father of the common law. And the words that Bracton penned that live on in this nation even today. He wrote them in Latin, they are today emblazoned on Langdell Hall at my alma mater, the Harvard Law School. These are the words that appear: “The king himself ought not to be under man, but under God and under the law, because the law makes the king. Therefore let the king render back to the law what the law gives to him, namely dominion and power, for there is no king where will and not law wields dominion.”
I can put it another way, “right makes might,” not “might makes right.” So he was following Judges 18:1, was he not, when the testimony says there is no king in Israel. There was no king, not because there wasn’t someone exercising executive power; there was no king because the executive power that was being exercised was being exercised contrary to law. And as Bracton said, there is no king where will, and not law, wields dominion.
So what we have is this common law legacy from Bracton in the thirteenth century that what makes an executive power executive power is when it is exercised lawfully as contrasted to the lawless exercise of such power. Now as is always true when someone lays down a general rule, God in his providence will bring circumstances in such a way to test whether you really believe it. I’m sure some of you have experienced that in your own life when you have discovered a general rule in the Bible, be ready, you are going to be tested. And indeed the nation of England was tested whether or not it really believed that not under man, but under God and the law during the reign of James I in the first half of the 17th century.
So John C.H. Wu who called Bracton the father of the common law, called Sir Edward Coke, who then was a judge of the common law, the savior of the common law, because James I put to the test whether or not he, the king, was above the law or whether he was under the law. Now Sir Edward Coke had laid the groundwork himself for this particular test. Let me quote to you from John C.H. Wu’s book, The Fountain of Justice, in which he deals with this particular period of history:
At a time when political speculation was tending to exalt a sovereign person or body above the law, Coke had the insight and courage to resort to the law of God and the law of nature. In Calvin’s case he declared that the law of nature is part of the law of England. The law of nature was before any judicial or municipal law. He said “the law of nature is that which God at the time of creation of the nature of man infused into his heart for his preservation and direction and this is lex eterna, the moral law, called also the law of nature. And by this law written with the finger of God in the heart of man were the people of God a long time governed before the law was written by Moses, who was the first reporter or writer of law in the world.”
Now Sir Edward Coke had read Exodus chapter 18, because he knew that Moses as judge had made known the laws and statutes of God before God ever gave him the Ten Commandments in writing. He was applying the law of nature in the nation of Israel before the law of revelation had been given to him and put in writing.
Now again, and here is Coke in Dr. Bonham’s case, he laid down the law that governed the judge. Not only did law govern the executive power, but law governed judicial and legislative power. “And it appears in our books that in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void. For when an act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will control it and adjudge such an act to be void.” So what we see here is that Coke took from Bracton that the executive power, the legislative power, and the judicial power had to be under the law and not under man. And that the law that he was talking about was the law of God.
Now King James had read the Bible, too. And he claimed that he had judicial power because he examined the Scriptures and found that Solomon had judged a case between two women and had determined to whom a baby belonged, one or the other. So he said, “Why shouldn’t I as king exercise judicial power. Didn’t Solomon exercise such power?” The difficulty was that King James did not recognize that the account of Solomon’s judgment with regard to the child was not an exercise of judicial power. It was an exercise of executive power. For Solomon never intended that the order that he issued would be carried out, namely the cutting of the baby in half. We read in Deuteronomy 17 that if a judge issues an order, it must be obeyed or otherwise you act presumptuously. The example of Solomon was that you must exercise judgment when you are exercising executive power.
And it was an example of righteous exercise of judgment, not the usurpation by the executive of judicial power. And Coke claimed that very proposition when he challenged King James and said that the king had no judicial power. This is what King James replied. He said that if that’s so, then it’s treason to affirm. Coke’s reply: “I said that Bracton saith that the king must not be under any man but under God and the law.” Now what’s interesting about that is to see the power of judgment, that because Coke was right, he survived. Because he was right, God honored Coke’s willingness to stand. And we see the legacy of Coke in Sir William Blackstone, who was able to write in his Commentaries that judges are depositaries of the laws, living oracles, bound by oath to decide according to the law of the land.
The Colonial and State Experience
Now that was the legacy that our forefathers brought to this nation and the charters of the several colonies affirmed that they had the rights and liberties as Englishmen. And therefore they brought with them this law of separated powers, this law of executive, judicial, and legislative power to America. And yet they faced the same challenge that Sir Edward Coke had faced, not with King James I, but with King George III. So what we find is that in the early administration of the colonial charters that once again an executive threat to the independence of the judiciary under the King’s power was made through the colonial charters.
So it is not surprising that when you read the Declaration of Independence in which our forefathers claimed that King George III and the Parliament had violated the laws of nature and of nature’s God, that part of the Bill of particulars of that violation was as follows: “He has obstructed the administration of justice by refusing to assent to laws for establishing judicial powers. He has made judges depending on his will alone for the tenure of their offices and the amount and payment of their salaries.”
What happened when our forefathers found themselves building a new nation? Were they going to build constitutional safeguards that would protect the new nation from further usurpations by executive power over judicial power. You find evidence even before the Declaration of Independence to that effect. One month before the Declaration was signed the Commonwealth of Virginia (then the Colony of Virginia which declared itself to be an independent state) established in its Constitution the following: “That the legislative and executive powers should be separate and distinct from the judiciary, and only the members of the first two be subject to election of the people.” That particular legacy was one four years later that we find in the Constitution of Massachusetts and perhaps best articulated in that particular Constitution in the early state documents.
A recognition not only that there were in fact three kinds of power, but that the exercise of those three kinds of power was governed by law, and that part of the law of the exercise of that power was the guarantee of an independent judiciary. A judiciary not responsive to the people in the same way as the executive and the legislative branches were, but responsive only to the law of God. Listen to the thirtieth article of the Constitution of Massachusetts:
In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial power or either of them. The executive shall never exercise the legislative and judicial powers or either of them. The judicial shall never exercise the legislative and executive power or either of them. To the end that it may be a government of law and not of men.
The man most responsible for that provision of the Massachusetts Constitution was John Adams, who claimed that the law of separation of powers was not just a matter of political expediency, not just a matter of checks and balances because of the sin of mankind, but was a matter of virtue, namely part of God’s law order for civil nations in order to assure the government of law and not of men. Now let me read to you the twenty-ninth article of the Massachusetts Constitution with regard to the importance of the independence of the judiciary in the law of separation of power:
It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the law and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people and of every citizen that the judges of the supreme judicial court should hold their offices as long as they behave themselves well, and that they should have honorable salaries ascertained and established by standing law.
The U.S. Constitution
It is not surprising with this state constitutional legacy that the United States Constitution follows those state constitutions, both in terms of describing the three kinds of power, and also providing for a law distinguishing between the three kinds of power. All you have to do is look at the first sentence of each of the first three articles and you will find that Article I deals with legislative power and vests it in Congress. Article II deals with executive power and vests it in the President. And Article III deals with judicial power and vests it in the Supreme Court. Then if you look at Article I and Article II you will find that the legislative body, both the House and the Senate, were to be subject to election by the people. The House, direct election every two years from the people. The Senate, every six years indirectly through the state legislative bodies. And of course, the President every four years and once again, indirectly, through the electoral college. But nonetheless, both executive and legislative power would be done in response to the people, but not judicial power.
Let me read to you from Article III, Section 1 so that we have the language before us. We find that judges, unlike legislators and executive power office holders, held their office during good behavior, and not on a periodic time scale of election. “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” Of course, as we know, in Article II, Section 2 that judges to the federal courts are appointed by the executive power and not elected by the people.
In California, there three Supreme Court judges were voted out of office by the people. Of course, many people rejoiced because they knew who was getting voted out of office. There were probably some who didn’t rejoice. Why is it that we don’t see today this distinction that was so clearly adhered to in the early state and United States constitutional heritage, that executive and legislative officers were subject to the election of the people, but judicial officers were not. I suggest to you the reason is not only because we no longer believe that there is a law that governs separation of powers. We think it is only a matter of political checks and balances. But we don’t believe in the law of the nature of judicial power, and therefore we are stuck with judges who the people finally have to vote out of office because our legislators and our executives are not appointing people who respect the law of judicial power to the courts today.