Separation of powers — it’s relevant!

It’s not every day that a “separation of powers” teaching moment presents itself, so when I saw this front page of the New York Times online edition, I decided to pounce:

Judges in Egypt are upset that President Morsi is seizing power, claiming that his decrees (orders) are above judicial review.  “Judicial review” means that judges can look at what a President does and say “nope, that’s unconstitutional — you’re taking too much power.”

For instance, if President Obama, as commander-in-chief of the US Armed Forces, decided to round up everyone named “Sally” and search their houses, the Supreme Court (and other lower courts) could review his actions and rule them unconstitutional.  The Fourth Amendment says that people should be secure from unreasonable searches and seizures, and the President would need a compelling reason to round up and search all the people named Sally.  Similarly, Congress can’t just make a law that says we will round up anyone named Sally and bring those people to jail.  Well, it can make such a law, but it’s up to the Supreme Court to declare such a law unconstitutional.  (And yes, I did use that example to show that such a rounding up did in fact happen, and the Supreme Court failed to do anything to protect the rights of Japanese Americans in a famous case called Korematsu v. US — so the system of checking power does not always work).

My friend Roger Berkowitz is the Academic Director of the Hannah Arendt Center at Bard College, and that center recently held a conference titled Does the President Matter?  It’s a reasonable question to ponder, and bright people at Bard College pondered it, paying particular attention to the legislative gridlock we’re facing, and also to structural problems with our system of government.

In one respect, however, the President certainly does matter — the President selects the new members of the Supreme Court, and those people serve for life.  Some serve for 20-30 years, so choosing a justice is a big deal and can have influence far beyond a President’s four-year term in office.

Particularly now, with four of the nine members of the Supreme Court in their 70s (see chart below) the President does matter — President Obama will likely get to replace at least one and probably two — or more — justices in the next four years.

The President’s selection of a new justice, however, is also checked — his choice has to be confirmed by a majority of the US Senate.

The framers of the US Constitution wanted to get away from a situation where one person (the King of England) had all the power, so there are three branches of government — the Senators and Representatives (a.k.a. Congress) make the laws and they’re called “legislators”; the President carries out, or executes, the laws, so he’s called the “chief executive”; and the judicial branch reviews the laws and actions of Congress and the President to make sure that nobody takes too much power.

Those are the three branches of the US government — Legislative, Executive and Judicial. It’s spelled out that way in the Constitution, as shown in this basic explanation of the separation of powers.

The founders of the US anticipated the sort of power grab going on now in Egypt, and wrote extensively in the Federalist Papers about why things were set up with plenty of checks on each branch’s power.  The idea is that each branch balances the other two out — it’s a system of “checks” and “balances.”

There’s commotion in Egypt now, because Egypt is essentially a new country in the aftermath of the Arab Spring.  We’ll have to wait to see how much power the executive branch takes.  When President Morsi grabs power and says his decisions are above judicial review, or that his power is essentially unchecked, the equivalent of the Supreme Court in Egypt gets pretty upset.

To quote from the New York Times article, which might make a bit more sense now (but will still require unpacking):

Abdel Meguid Mahmoud, a prosecutor whom Mr. Morsi is seeking to fire, declared to a crowd of cheering judges at Egypt’s high court that the presidential decree was “null and void.” Mr. Mahmoud, who was appointed by Mr. Morsi’s predecessor, Hosni Mubarak, denounced “the systematic campaign against the country’s institutions in general and the judiciary in particular.”

Outside the court, the police fired tear gas at protesters who were denouncing Mr. Morsi and trying to force their way into the building.

The judicial backlash widened a power struggle over the drafting of a new constitution that has raised alarms about a return to autocracy 22 months after the ouster of Mr. Mubarak.

In the US, the President can’t just brush aside the judicial branch.  Also, as noted above, justices serve for life (unless they are impeached by the Senate, but that’s never happened … though there were signs for some time during the Warren Court that said “Impeach Earl Warren” — Warren was the Chief Justice of the Supreme Court, and that court in the 1950s and 1960s, “expanded civil rights, civil liberties, judicial power, and the federal power in dramatic ways”, according to the Wikipedia article about the Warren Court).

The current compelling events in Egypt present a great opportunity to teach students about the separation of powers here in the US in a way that’s far less abstract.  It also affords opportunities for connections with the recent election and why/whether that election mattered.

Should you want to pursue such connections, here’s the link to that article in the New York Times, titled Morsi Urged to Retract Edict to Bypass Judges.

If Triangle Learning Community middle school were in session already (we’re opening in fall 2013), we would slow down and take time to unpack this article so that we could use it as a springboard to a lively unit on civics and citizenship.

[Note that we, as diligent students at TLC middle school, would also look up any words we didn’t know, such as “autocracy” and “denounce,” and record those words as we work to constantly expand our vocabulary]

[Further vocabulary note: here’s one of my favorite scenes from an education movie, where the teacher in “Dangerous Minds” is tired, but still maintains that vocabulary matters — as she puts it in this clip, “words are thoughts, and we can’t think without them.”]

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About Steve Goldberg

I teach students at Research Triangle High School (RTHS) about US History. RTHS is a public charter school in Durham, NC, whose mission is to incubate, prove and scale innovative models of teaching and learning. The blog posts here reflect my own personal views and not those of my employer.
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