Many news reports and commentaries have been published in recent weeks by authors across the political spectrum referring to the three "co-equal branches" of the U.S. government: the executive, legislative, and judiciary, as if the intent of the framers of the U.S. Constitution was somehow to place an equal amount of authority in each of the three branches.

A reading of the Constitution, however, shows that this is simply not the case, and that if the framers used today's language when writing the Constitution, that they probably would have chosen to refer to the judiciary as a independent agency under congressional oversight.

Article 1 of the U.S. Constitution, which pertains almost entirely to the composition and powers of Congress, is approximately six times larger that Article 3, which pertains to the federal judiciary. Section 8 of Article 1 alone, lists 18 different types of authority that Congress has the power to exercise. There are other sections in the Constitution which vest in Congress additional authority.

Conversely, Article 3 of the Constitution doesn't list any specific powers that can be exercised by the federal courts; only the jurisdictions of the U.S. Supreme Court are mentioned. These jurisdictions are divided into original and appellate varieties, the latter of which Congress is given express authority to regulate.

Many Americans believe that the Supreme Court has constitutional authority to strike down laws enacted by Congress, but there is no clause in the Constitution vesting such power in any court. If the framers had intended the Supreme Court to exercise such power, they could have easily inserted a clause with language such as: "The Supreme Court, by majority vote, may suspend the enforcement of any act of Congress that is, in the court's opinion, not in compliance with the provisions of this Constitution." There is, however, no such language in the Constitution.

Although federal courts have no direct constitutional authority to restrain the actions of Congress, Congress has broad and robust direct constitutional authority to regulate the courts.

Congress has the power, with the cooperation of the president, to:

1) Regulate the jurisdictions of district and appellate courts: Since no federal courts, with the exception of the U.S. Supreme Court, have constitutionally-defined jurisdictions, Congress has complete discretion to mandate the jurisdictions exercised by district and appellate courts (Article 1, Section 8, Clause 18).

2) Regulate the appellate jurisdictions of the U.S. Supreme Court: Congress can exercise constitutional authority to prevent the Supreme Court from hearing arguments and making rulings on cases that most members of the public don't want the courts to adjudicate such as those involving same-sex marriage or the displays of religious monuments (Article 3, Section 2).

3) Determine whether or not federal courts should have authority to issue writs: Interestingly, courts have no constitutional authority to issue writs; the framers left this issue entirely up to the discretion of Congress (Article 1, Section 8, Clause 18).

4) Require that rulings issued by the U.S. Supreme Court on constitutional cases be based on unanimous decisions instead of majority decisions; there is no procedure defined in the Constitution for making these types of rulings (Article 1, Section 8, Clause 18).

5) Require that courts apply the Constitution using a commentary supplied by Congress, instead of a commentary of the court's own making (Article 1, Section 8, Clause 18).

Accordingly, the three different branches of the federal government are not co-equal and were never intended to be so.

What does all of this mean with respect to the topic of judicial activism?

The U.S. Congress has all the constitutional authority it needs to rein in activist judges. The main question we should be asking is whether or not there is a sufficient desire by Congress and the president to achieve this objective.

Copyright by Andrew W. Pollock III

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