"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The Constitutional Convention adopted the Constitution of the United States on Sept. 17, 1787, in Philadelphia. It is the oldest, written national constitution in continuous use, and it has been used many times as a basis for establishing other countries' constitutions. For 225 years, it has been our guide for political structure and the rule of law. Happy 225th anniversary, Constitution! You are the supreme law of the land, and I raise my glass to you.
Those 225 years have not always been smooth, and there are sure to be more bumps in the road over the next 225 years. Why? Lots of reasons. For example, times have changed since the document was written. We drive cars, fly planes, send documents across the world in seconds over the Internet, fly to the moon, etc. etc. The founding fathers had no way to see all of that coming. Nevertheless, they somehow managed to craft something that has stood the test of time.
Through its preamble, articles and amendments, the Constitution guarantees our rights and liberties. It protects our freedoms. The document provides a sense of comfort knowing that all Americans will be treated equally under the law … well, at least that's the goal.
In order to keep equality in the forefront, and to protect those rights, liberties and freedoms, the Articles of the Constitution established the legislative, executive and judicial branches of the U.S. government. Florida's Constitution is no different in that it also sets up three branches of government. When you cut through it all, the branches were intended to be kept distinct in order to provide a system of checks and balances, and to prevent an abuse of power.
One of the principal reasons our government has functioned so well over all of these years, at the federal and state levels, is that separation of powers. And, judicial independence is the cornerstone of it all. The judicial branch is intended to be nonpartisan and to rule based on the requirements of the law as contained within the Constitution (whether that is the United States Constitution or the Florida Constitution). That works if the judiciary is free from political influence. If politics creep in, the system breaks down. We risk corruption and, maybe worse yet, aristocracy and tyranny. It doesn't matter which side of the political aisle you sit on, you can't make a credible argument that we don't need judicial independence.
Unfortunately, for a number of reasons, the judicial branch is under attack. For instance, there are political groups around the country focused on influencing how judges are appointed … and removed. Here in Florida, we have a merit retention system that was put in place in response to corruption in our highest courts. Our voters get to decide whether to keep Supreme Court justices and appellate judges based on performance.
What people don't understand is that the evaluation should not be based on whether you agree or disagree with certain decisions made by a judge. It should be based on whether that judge has done her or his job by applying the law in a fair and impartial manner, and whether he or she has the ability to continue to do so. It should not be based on party affiliation or special interest groups, and it is up to us to make sure that politics do not change that. If we don't stop it, we put another 225 years at risk.
In addition, the judiciary's funding is under attack because that branch is particularly vulnerable to economic fluctuations. As we all know, our court system has been over-burdened for a long time and that has only intensified as we have suffered through the Great Recession. Yet, the funding for the judicial branch has been a place where the powers that be have looked to find money. That has resulted in courthouses closing and access to courts being more limited, and that simply is unacceptable. Protective measures need to be put in place to stabilize the courts so that they function in the way they are intended to function. If we don't do it, we put another 225 years at risk.
As a side note, the lack of funding reaches beyond our court system. Some state-funded organizations, such as Jacksonville Area Legal Aid, are affected by the economic decline and budget cuts. Funded in large part by lawyers' trust accounts, the shrinking interest rates have severely cut into JALA's budget. The Sixth Amendment in the U.S. Constitution promises all Americans the right to legal counsel. Court-appointed attorneys are designated for criminal cases.
So, what happens when you have a civil case such as a housing issue? Recent numbers show that Jacksonville's foreclosure rate is more than double the national average. Statistics of those classified as poor in Jacksonville is increasing. The need for nonprofit legal aid is increasing, but the legal counsel available to assist with these cases is decreasing due to lack of funding.
So, although the Constitution provides that everyone has the right to legal counsel, the question is whether they really do. If we don't give everyone that access, we put another 225 years at risk.
We the people established the Constitution of the United States to form a more perfect union. It's been a great 225 years. If we want 225 more, we better pay attention to what is going on around us and it starts with protecting our courts. As lawyers, we have a responsibility to do just that.
So, if you have not done so lately, take a few moments and read our U.S. Constitution. It will remind you just how perfect our union is and how much we want to make sure it stays that way. Happy anniversary, Constitution! Thanks for everything.
Postlude: I wrote this article before the Nov. 6 election, but it is going to print afterward. Although Amendment No. 5 failed and merit retention generally was protected from political influence, these are fights that likely will continue into the future. We need to continue to work hard to keep ourselves educated on these issues, and to educate those around us.
The Bar is open! Come make a difference!