Widgetized Section

Go to Admin » Appearance » Widgets » and move Gabfire Widget: Social into that MastheadOverlay zone

Sitting In Judgment

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Jason Bowns
September 26, 2022

College professors often point out how public policy has many fountainheads.

When the state legislature or Congress ratifies a law which resists or avoids that final hurdle of an executive veto, then new policy is made. If a local Board of Education supports full access to healthcare service right at students’ in-district elementary school campus, then public policy again takes shape by tangible action prompted by a governmental authority’s decision. Even when a governor decides how best to enforce or, in some cases, to ignore a law, public policy takes shape.

The United States Supreme Court conducts judicial review, defined in 1803 when Chief Justice John Marshall wrote Marbury v. Madison’sdecision that, “If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?”

With Marbury, justice materialized—in theory—as a blind and objective force. Marshall entered the judicial oath as evidence for the role of anyone who sits on the courtroom bench: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.” That judicial conduct code defines the administration of justice as one which embodies “equal right,” “faithfully” and “impartially.”

By evaluating a law’s constitutionality, the judiciary affirms an existing status quo or can inadvertently create new public policy. Marshall wrote more in the seminal Marbury decision which remains policy gospel today about how “It is emphatically the province and duty of the Judicial Department to say what the law is…If two laws conflict with each other, the Courts must decide on the operation of each.”

Of course, as far as the supreme law of the land is concerned, stakes are raised since “a law repugnant to the Constitution is void, and…courts, as well as other departments, are bound by that instrument.” No public policy can violate the Constitution. Making that determination ultimately rests in the courts’ jurisdiction.

Different courtrooms can interpret public policy questions differently. Trial court judges are routinely reversed on appeal, and appellate courts are readily reversed by state or federal supreme courts. The highest court ends the policy debate.

Returning to the roots of public policy where laws are made, constituents elect each solon to represent their own jurisdiction. Voters exercise judgment to decide what candidate best represents them. In the spirit of ancient Rome, our American republic is driven by representatives who shape public policy by enacting laws.

Nevertheless, not all representatives vote the same. Some follow whatever the majority of constituents want while others chart more independent paths. British philosopher Edmund Burke famously drew his own conclusions in 1774, noting “Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents…But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you…”

As we, the people, discern what’s best or right or fair, are there absolute answers and truly universal truths? What prevents the Supreme Court of the United States, comprised of different justices than those who now serve in our present or an earlier time decades ago, from concluding that stare decisis is, in fact, wrong?

Recall how it was during the 1896 Plessy v. Ferguson case when that highest court, so sworn to administer justice faithfully and impartially, determined “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.” Seven of those nine justices outlined a brand-new public policy for America, that believing racial segregation to be wrong was merely a “fallacy.”   

Six decades passed by before that very same institution, filled with different justices, decided to change its collective mind. Chief Justice Earl Warren wrote for a unanimous court, “Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The United States Constitution has a built-in amendment process, but America’s courts surely have perpetual authority to amend previous interpretations of public policy.

Perhaps that’s why America’s first purpose enumerated in the Constitution’s preamble, announced a united quest “to form a more perfect union.” While forever imperfect, policymakers haven’t stopped reaching for what’s fair or best or right.

For as long as we reach for that white star in a blue sky, America’s heart will beat.

Author: Jason Bowns is a proud graduate of New York University and earned his Master in Public Administration degree from John Jay College of Criminal Justice’s Inspector General training program. A certified social studies teacher, Bowns has worked in a variety of educational settings and is especially interested in juvenile justice, penology, and public sector ethics. Contact him at [email protected].

1 Star2 Stars3 Stars4 Stars5 Stars (1 votes, average: 4.00 out of 5)

Leave a Reply

Your email address will not be published. Required fields are marked *