National Security Within the Constitution Essay

Introduction

The national government has an enormous responsibility of ensuring that its citizens receive enough security to guard their lives and property against any form of violence or aggression. The provision of national security is an inalienable right that citizens deserve from their government. National security is more than physical fights and wars; it involves complex interrelationships of government branches and foreign countries. State of national security depends on the cooperative function of the three branches of government, viz. judiciary, legislature, and executive. Moreover, international relationships in terms of foreign policy, treaties, intelligence gathering, and international agreements are also critical in determining the safety of citizens. However, the relationship among the three branches of government and international relationships significantly influence legislations and policies of national security. At international and national jurisdictions, laws and constitutions usually have inconsistencies that compel the executive, legislature, and judiciary to find an appropriate harmonization for the effective and smooth implementation of national security policies and laws. According to Mitrano, Marbury v. Madison set the precedent of judicial law review that empowered the judiciary to be a ‘final arbiter’ in settling constitutional inconsistencies of statutes (52). Thus, Marbury v. Madison formed the basis of judicial review. This essay examines the potential points of conflict between the judiciary and legislature concerning national security relative to Marbury v. Madison and the United States’ constitution.

Marbury v. Madison

The case of Marbury v. Madison became a landmark case from which the concept of judicial review emanated. In 1803, there was a change in regime in the United States as Thomas Jefferson defeated an incumbent president, John Adams, in an election. To retain power, John Adams expanded the judiciary and appointed a number of judges, famed as ‘midnight judges’ because they assumed their responsibilities during the last period of John Adams’s regime. When Thomas Jefferson took power in 1803, he ordered the attorney general not to offer more appointments, and thus other judges did not receive their appointments, as John Adams wanted. William Marbury was one of the judges who did not receive his appointment. William Marbury filed an appeal wanting the Supreme Court to compel James Madison, a secretary of state, to honor his appointment. Chief Justice then, John Marshall, ruled that the judiciary Act 1789, in which William Madison has based his claim, is unconstitutional. Walter asserts that the judiciary Act that mandated Supreme Court to issue orders was inconsistent with Article III of the United States’ constitution (3). Therefore, when an Act is not consistent with the constitution, the constitution takes precedence. Marbury v. Madison is a precedent that formed the basis of judicial review not only in the United States but also across the world.

Judiciary and legislature are two branches of government that function cooperatively in ensuring that government formulates and applies laws effectively for the common interest of citizens. However, conflicts usually arise when the legislature formulates laws that are inconsistent with the constitution because the judiciary has the mandate to review and reject them as may be necessary, as stated in Marbury v. Madison. On the other hand, the legislature has the mandate to formulate laws for the sake of citizens because they are representatives of the people; thus, judicial review of laws, which are passed by the legislature, is an act that diminishes the powers of the legislature. Thus, powers vested in the judiciary of determining constitutionality laws passed by Congress influence legislative powers of the legislature. In Marbury v. Madison, the Supreme Court held that statutes or treaties are only valid to the extent of their consistency with the constitution. Hence, if the legislature makes laws that are not consistent with the constitution, it would not stand judicial review, hence void. According to Walter, the decision of Marbury v. Madison asserts that Supreme Court has the power to determine the constitutionality of statutes that Congress passes (4). Article III of the United States’ constitution bars Congress from expanding the original jurisdiction of the Supreme Court; hence, in the case of Marbury v. Madison, John Marshall decreed that the Supreme Court lacked original jurisdiction to expand the mandate of appellate courts.

Potential Points of Conflict

Review of Acts

Based on Marbury v. Madison and the United States’ constitution, legislature and the judiciary have potential points of conflict with regard to review of Acts in issues of national security. The three branches of government have defined powers that do not overlap; however, the concept of judicial review as depicted in Marbury v. Madison shows that the judiciary is infringing on both executive and legislative powers. Congress represents diverse views of citizens and has the responsibility of formulating laws that are in tandem with the security status of a country. Since the judiciary has the constitutional mandate, according to Article III, to review the congressional Acts, it means that security Acts passed by Congress are subject to judicial review. Therefore, the legislature is limited in formulating laws that seek to protect citizens. Issues of national security require immediate response in that, whatever Congress passes, the judiciary needs to adopt and apply it expediently to protect citizens from any security threats. However, the process of judicial review is an obstacle that slows down the process of implementing laws passed by Congress. McClory argues that the constitution has distributed national security powers effectively between the legislature and executive, which provide enough ‘checks and balances’ of security powers (3). Inclusion of the judiciary in reviewing Acts passed by Congress does not enhance ‘checks and balances’ but complicates formulation and implementation of national security legislation.

Since the United States is facing impending threats of terrorism, legislature and executive are particularly alert and ready to adopt new laws that would enhance national security. For instance, during the terrorist attack of September 11, 2001, on World Trade Center, the legislature rose to their occasion in time and formulated the PATRIOT Act, which provided the basis of war on terror. Mitrano argues that the PATRIOT Act enhanced the powers of the United States of gathering information even if it means infringing on personal level privacy (53). The Patriot Act emphasizes the need for national security over privacy rights. It means that the police or security personnel can make unreasonable search and arrest of terrorist suspects contrary to the fourth amendment to the United States’ constitution. If the judiciary were to review the Patriot Act, it would declare it unconstitutional no matter what form of security threat that Americans would be facing. Thus, judicial review of Acts passed by Congress concerning matters of security hampers security and creates conflicts between the judiciary and legislature.

Given that the legislature has the sole responsibility of formulating laws, judicial review is a hindrance to the process of formulating and adopting laws. Usually, the legislature formulates laws through a rigorous process that does not need any further review in terms of constitutionality. Moreover, when Congress passes a bill, presidential assent makes it an Act, a fundamental law that forms part of other laws that the government uses in performing various activities. However, the introduction of judicial review, as portrayed by Marbury v. Madison, is going to complicate the legislation process. In view of Marbury v. Madison, the judiciary has powers to determine the constitutionality of acts and statutes and declare them void if they are inconsistent with the constitution. If the judiciary adopts full responsibility for reviewing Acts, it means that Congress has no essential role rather than formulating haphazard laws since the judiciary is going to review them. Therefore, regarding matters of security, the judges will have to review every law that appertains to national security and determines its constitutionality. Eventually, judicial review would interfere with the legislative process and affects formulating of the laws that relate to national security.

Autonomy of Branches

Legislature has its own ‘checks and balances’ during the process of legislation; thus, it does not need the judiciary to aid it in determining the constitutionality of Acts. The Congress has standard procedures that it employs while making laws as its primary responsibility. Given the exigency nature of security laws, it is imperative that Congress plays an active role in ensuring that it passes essential laws in time to counteract any impending security threats. Judicial review of laws pertaining to national security creates conflict between the judiciary and legislature because; each branch of government is trying to gain sufficient autonomy to enable its proper functioning. Legislature requires own autonomy of formulating laws without undue interference from executive and judiciary; likewise, the judiciary needs to attain autonomy of interpreting and applying the law. However, the concept of judicial review, as depicted in Marbury v. Madison, shows that the judiciary is infringing on the legislature by determining the constitutionality of its statutes and acts, yet the legislature does not interfere with the functions of the judiciary. Thus, legislation of laws concerning national security is a potential source of conflict between the legislature and judiciary.

Marbury v. Madison and Article III of the United States’ constitution empowered the judiciary to determine the constitutionality of statutes and acts. The power of the judiciary to determine the constitutionality of statutes and acts is not in line with the essence of separating functions of government. Each branch of government needs to have sufficient autonomy for it to perform its functions optimally. However, the concept of judicial review denies legislature to make a wide range of legislations because the judiciary imposes restrictions on it and thus hinders it from performing legislative functions optimally. Given that matters related to national security are urgent in that it requires expedient executive, legislative, and judiciary actions, the judiciary seems to be a limiting factor because it is more conservative in its interpretation and application of the law, in addition to reviewing it. According to Reinhardt, the judiciary is inherently a conservative institution with conservative judges who do not want to get entangled with controversies, change, and risks in matters of security (1309). Giving the judiciary mandate of reviewing the constitutionality of laws pertaining to national security is quite detrimental. Judiciary has the basic responsibility of interpreting and applying the law, but reviewing acts is an additional responsibility that does not only interfere with legislative function but also expedient legislation of laws that national security needs.

Differential functions of the legislature and judiciary are paramount because it differentiates the formulation and implementation of laws. Judicial powers of reviewing Acts give judiciary excessive mandate that makes it interfere with legislative functions. In essence, autonomy is a potential point of conflict between the judiciary and legislature. Legislature does not perceive judicial review as a way of enhancing the constitutionality of acts but perceives it as a judicial threat to its autonomy. Fundamentally, functions of the judiciary and legislature should not overlap or interfere with each other because it will diminish the essence of autonomy. Since laws appertaining to national security are sensitive and urgent with regard to human safety and rights, enhanced powers of the judiciary would have a negative impact on the formulation and adoption of laws. Thus, for effective formulation and implementation of security laws, the legislature needs to have sufficient autonomy that is free from any interference by the judiciary through its judicial powers of review.

Ramifications

Judicial review does not enhance ‘check and balances’ of the legislature but interferes with legislative functions. Essentially, the judiciary and legislature should have unique responsibilities that are not duplicated but rather complementary. However, the concept of judicial review of determining the constitutionality of Acts reflects the excessive powers that the judiciary has over the legislature. In this case, the legislature has the extra power to review acts, in addition to interpreting and implementing them, while the legislature only remains with the responsibility of formulating. In matters of national security, if the judiciary determines the constitutionality of laws enacted by Congress, judicial review would not only hamper the nature of laws but also increase the bureaucracy of formulating laws.

Although judicial review may seem like ‘checks and balances’ of regulating legislation, it is an obstacle for it interferes with the functions of the legislature. Differentiation of functions of the legislature and judiciary is extremely significant as it prevents duplication of responsibilities and interference. In this case, judicial review interferes with legislation that the legislature makes despite the fact that they have undergone a rigorous process. For instance, if the legislature formulates laws, which need urgent attention due to security reasons, the judicial review becomes an impediment because it may slow the implementation and invalidate the timely and proper application of the laws due to their unconstitutionality. Security issues need radical measures that focus on exigent issues at hand, and thus judicial review, as depicted by Marbury v. Madison, hinders the formulation and implementation of security laws.

Concerning autonomy, if the judiciary has the mandate to review all Acts that Congress passes, it means that the legislature’s role in formulating laws diminishes. The power of the judiciary to perform judicial review encroaches into the autonomy of the legislature and enhances the powers of the judiciary. Fundamentally, the legislature would have no reason to formulate laws that the judiciary would declare void. With regard to national security, since security laws mostly emanate from the nature of security threats, for instance, terrorism activities of September 11, 2001, led to the formulation of the Patriot Act, legislature plays a pivot role in formulating laws based on congressional votes. Passage of a bill through the Congress and presidential assent are rigorous processes that do not need review. However, allowing the judiciary to enforce its powers of review would curtail legislature from making laws and subsequently affect the formulation of laws relating to national security.

Conclusion

Since national security is tremendously crucial in ensuring the safety of lives and property, the government uses all means at its disposal to guarantee its citizens’ safety. Three branches of government, viz. judiciary, legislature, and executive, function cooperatively and in a complementary manner. However, a lack of harmony in the functioning of the three branches of government affects the formulation and implementation of laws and policies relating to national security. The case of Marbury v. Madison reflects how the judiciary can interfere with legislative functions by determining the constitutionality of its Acts. Judicial review powers can significantly affect legislations of security laws since two main points of contention are a review of acts and autonomy of legislature.

Works Cited

McClory, Toni. “United States Constitution: National Security.” Congressional Research Service, 2006: 1-5.

Mitrano, Tracy. “Civil Privacy and National Security Legislation: A three-Dimensional View.” Educause Review, 2003: 52-60.

Reinhardt, Stephen. The Judicial Role in National Security. Boston University Law Review 86.4(2006):1309-1313.

Walter, James. “Marbury v. Madison (1803)”. Law Review, 2008: 1-11.