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Why a co-equal independent judiciary matters

For the last two weeks, I have focused on two court cases that raise fundamental governance issues of the constitutional power of the Office of the Governor, the General Assembly, and the State Board of Education. But these are just a starting point for cases in the pipeline that will shape State responsibilities for public education. We are waiting for the NC Supreme Court’s decision on the constitutionality of legislation providing for State-funded opportunity scholarships/vouchers. The NC Court of Appeal’s decision that it is unconstitutional for the General Assembly to take career status away from teachers who had earned it is headed to the NC Supreme Court. And next week, Judge Howard E. Manning, Jr. holds a hearing on the sufficiency of the State’s plan to correct education deficiencies as required to meet constitutional obligations.

As the judiciary decides these cases on the constitutional roles and responsibilities of the legislative and executive branches, perhaps it is a good time for us to reflect on the importance of a co-equal and independent judicial branch of government.

The principles of separation of powers and judicial independence are enshrined in the North Carolina Constitution. In our Declaration of Rights, our constitution states that “[t]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” Article IV provides for judicial power to be vested in a General Court of Justice and that the “General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government.”

While state constitutions were the first to address judicial independence and the related concept of separation of powers, our federal constitution also addresses these principles. The Federalist Papers, written to promote ratification of the United States Constitution, describe the importance of these principles. Federalist Paper #78, attributed to Alexander Hamilton, addresses in particular the role of the judiciary in interpreting the constitution:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

And Federalist Paper #81, also attributed to Hamilton, acknowledges the wisdom of states like North Carolina in its approach: 

These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.

In this last sentence, Hamilton referred to the “comparative weakness” of the judicial branch. Chief Justice John Marshall helped establish the judiciary as a co-equal branch in his 1803 Supreme Court opinion, Marbury v. Madison. In the first case to apply the principle of judicial review, Chief Justice Marshall wrote:

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.

Sam J. Ervin, Jr., U.S. Senator from North Carolina from 1954-1974, wrote for a Duke University law journal in 1970 about the history of judicial independence and his experience as chair of a Senate Judiciary Subcommittee on Separation of Powers. He observed:

“To my mind, an independent judiciary is perhaps the most essential characteristic of a free society. From long experience as a practicing attorney, a trial judge, an appellate judge, and now a legislator, I have had ample opportunity to observe and appreciate the safeguards embodied in the separation of powers doctrine so wisely formulated by our forefathers.”1

North Carolina Chief Justice Mark Martin also has spoken to this issue, including at his investiture ceremony:

Our founders clearly understood the importance of our courts, and that is why they made the courts a separate and co-equal branch of government; a co-equal branch which has a critical function to perform on behalf of the people of North Carolina.

Challenges to maintaining a co-equal, independent judiciary have been recognized since the days of our founders. Contemporary issues such as the cost of judicial campaigns and the need for adequate funding of the courts by the General Assembly are worthy of our attention and best thinking. I have a much more modest goal today of simply raising why a co-equal, independent judiciary matters as we rely on the courts to interpret our constitution on issues of critical importance to public education and to us as a State. 

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  1.  Sam J. Ervin, Jr., Separation of Powers: Judicial Independence, Law & Contemp. Probs., Winter 1970, 108-127, at 121.
Ann McColl

Ann McColl is an attorney practicing in the field of education law since 1991. She currently serves as co-founder and president of the Innovation Project.