A balancing act.

"If citizens have respect for the work of their courts, their respect for law will survive the shortcomings of every other branch of government; but if they lose their respect for the work of the courts, their respect for law and order will vanish with it."--Arthur T. Vanderbilt

How much power should a government have? How should such power be distributed? What rights should a government guarantee to its citizens? These questions were among those debated in the historical development of our government and continue to be the focus of national debate in our country today. The balancing act of liberty and order continues to be examined and applied to contemporary issues and situations throughout the U.S. and the world.

One of the primary aims of good government is the protection of individual rights. (1) Yet today evidence suggests that the majority of Americans know little about their rights. How can we hold government accountable for the protection of our rights when we do not even know what they are? We cannot.

In a study conducted by the First Amendment Foundation and the American Journalism Review, only two percent of Americans polled could identify the five rights in the First Amendment. (2) However, such freedoms are deemed as the most fundamental to the principles of American democracy. Freedom of speech, freedom of the press, freedom of religion, the right to peaceably assemble, and the right to petition the government for a redress of grievances define the very essence of American society. While government has the responsibility to protect individual rights, we as citizens hold a dual responsibility to know and understand these rights.

The U.S. and Florida constitutions provide the structure and function of government as well as protect individual rights. Three separate and distinct branches were designed with separate primary powers and functions. The accumulation of all power in one branch was something the framers of the Constitution feared would lead to tyranny. "The accumulation of all powers, legislative, executive, and judiciary in the same hands ... may justly be pronounced the very definition of tyranny." (3) However, the framers also knew these three separate and distinct branches of government needed a system of controls or constitutional checks over each other to keep them "in their proper places." (4)

The Balancing Act

Checks and balances are important components of the design of our government. Each branch of government shares in the powers of the other two so that each can also limit the powers of the others. (5) Without effective checks, in a government based on the will of the people, the majority could exercise tyranny over a minority through their popularly elected government representatives. The main point of separation of powers with checks and balances in our government is the prevention of tyranny and the equal protection of individual rights under law. (6)

The constitutional design of these conjoined principles--separation of powers with checks and balances--is exemplified by articles I, II, and III in the U.S. Constitution. 7 Congress has the legislative or lawmaking power. The president and the executive branch carry out and enforce the laws. The Supreme Court and inferior courts have the judicial powers that involve interpretation of the law in specific cases. The president, however, can check Congress by vetoing or refusing to approve proposed legislation. In turn, the Congress can override an executive veto by a two-thirds vote. Furthermore, presidential appointments to executive departments and to federal courts require Senate approval. In addition, the judiciary can use its power of judicial review to invalidate unconstitutional acts of the other two branches.

Why a repeat of basic constitutional studies for such an educated audience? It is important to realize how little our citizens know and understand about the design of our government, particularly separation of powers and checks and balances, in order to evaluate the impact such limited knowledge may have upon the continuation of this experiment in self-government. In a recent poll conducted by The Florida Bar, Floridians were quizzed on their knowledge of some basic principles of democracy. The findings were similar to earlier findings of a national poll the American Bar Association conducted. Fewer than 60 percent could correctly identify the three branches of government (executive, legislative, and judicial) and fewer than half understood the concepts of separation of powers and checks and balances. Perhaps we need to reflect upon the very essence of our constitutional roots to convey this information to the public.

Sometimes our youngest children can shed light on the best ways to express such complex concepts. A seven-year-old, first grade student in Miami submitted a law week poster to the Florida Law Related Education Association, Inc., in response to the 2006 theme addressing separation of powers. This young immigrant student drew a picture of a see-saw with each branch of government symbolized within the drawing. Sabina wrote, "Some people make the laws. Some people explain the laws. Then some people make us obey the laws. This makes our country fair. The see-saw stays balanced when the three parts are working together." Her words along with a very imaginative picture have captured the essence of a complex concept through the eyes of an elementary student.

The Unique Role of the Courts in this Constitutional Design

"We the People" are the first words of the preamble to the Florida Constitution as well as the first words of the preamble to the U.S. Constitution. Both documents speak of "we the people" as a sovereign. The individual in our society may need protection from the sovereign--all of us. Because the individual in our society needs protections, the Florida Constitution as well as our national Constitution have placed limitations on citizens and the government.

The courts are unique in this constitutional design in that they do not represent the will of the majority. Judges are different from legislators. Judges should not consider political repercussions when they decide a case. Instead, judges are responsible for making decisions based on the law. They should be impartial and fair in their decision-making, free from political pressures or influences. Decisions should be based solely on the facts and applicable law. Former Chief Justice William Rehnquist in a 1980 dedicatory address at Pepperdine stated, "Judges must strive to do what is legally right, all the more so when the result is not the one the home crowd wants."8 When citizens support the American tradition of judicial independence, they act to protect their rights to liberty under law.

Judges often have to review government actions to determine whether they conform to the provisions of the Constitution. The power of judicial review was firmly established in Marbury v. Madison, 5 U. S. 137 (1803), and is one of the fundamental principles of American constitutional law. Judges must have the independence to rule against the government when necessary. They should not be afraid to use their best legal judgment to interpret the law. Historically, one of the main concerns cited against King George III was, "He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries."9 If judges are fearful for their jobs or feel they will be punished for unpopular decisions, are they less likely to be neutral and impartial?

It is also important for citizens to understand that judges are accountable for their actions. Judges must follow the U.S. and Florida constitutions in their decisions as well as applicable law as opposed to making decisions based on their personal beliefs. The public should understand concepts such as case precedent and the appellate process. Additionally, judges' actions are reviewable. In Florida, a Code of Judicial Conduct provides the ethical guidelines for the conduct of judges in Florida's court system. The Judicial Qualifications Commission reviews and investigates complaints about judges. Judges can be sanctioned for misconduct and even removed from the bench. The public needs to understand the difference between an unpopular ruling by a judge and conduct that is unethical or in violation of the Code of Conduct for judges. This can be easily demonstrated through a series of icebreaker activities or lessons for student and adult populations alike.

Public Attitudes About the Judicial Branch

Evidence has long supported the notion that as public knowledge about the justice system increases, public trust and confidence in the courts also increases. Public education and outreach are essential to build long-term support for this institution of democracy.10 In a recent study conducted last year by Justice at Stake, a nationwide, nonpartisan partnership of more than 30 judicial, legal, and citizen organizations dedicated to fair and impartial courts, Americans reported that the most important function of the court system is to serve as guardians of our constitutional rights. (11) This was followed by a fair and impartial judiciary.

This same study revealed that "having an understanding of the role of precedent, appeals, constitutional review, and other aspects of the courts appears to reinforce an appreciation for the courts and their role as constitutional guardian." (12) Education, specifically knowledge of the courts was found to directly correlate to support of the courts. (13)

In previous years, national conferences have addressed issues affecting public trust and confidence in the courts. Lack of public understanding of the courts and judicial isolation--lack of contact with the public--were identified as high priorities critical to building trust and confidence. (14) Effective, interactive educational presentations delivered directly by judges and attorneys using appropriate methods will have an important impact upon public understanding and perception. Direct contact and interaction with judges will allow greater accessibility to information and build relationships with the public.

A survey released in September 2006 by the Annenberg Public Policy Center of the University of Pennsylvania found that while trust in the judicial branch is high, and the judicial branch remains the most trusted branch of government, levels of trust decreased from 75 percent in 2005 to 64 percent this year. (15) Director of the Annenberg Public Policy Center Kathleen Hall Jamieson reported that a lack of understanding of checks and balances as well as the basic constitutional functions of the courts is problemmatic. (16) Issues contributing to public concern included the role of money in the election of state judges, impartiality, and political influences.

A body of research spanning several decades provided the initial foundation for teaching law-related education in our public schools. The centerpiece of this research was a study the U.S. Department of Justice commissioned that concluded law-related education, properly implemented, could have a positive impact not only on knowledge, but also on skills and attitudes. Recommendations were identified as successful prescriptions to effective law-related education programs, one that included the use of law-related resource persons, such as judges and lawyers, in the classroom. It was important that the resource persons present a balanced view using interactive and effective methodologies in the classroom.

Justice Teaching

Law-related and civic education has become the cornerstone of Florida Supreme Court Chief Justice R. Fred Lewis' administration. Since his appointment to the bench, the chief justice has visited schools three or four times a month. He realizes the importance of teaching students to understand how our institutions of democracy work. The Chief Justice is helping to develop a permanent structure to reach out to every school in the state.

Judges and attorneys in every circuit will be encouraged to participate in this education outreach effort. Effective lessons, training, and resources will be available to prepare resource persons to work directly with schools and students. The Supreme Court of Florida, The Florida Bar, and the Florida Law Related Education Association, Inc., are working together to implement this statewide plan.

Activities and lessons designed to acquaint audiences with the courts and the Constitution have been designed for use with the Justice Teaching initiative. Each lesson has been used in various grade levels to determine its effectiveness and these lessons will be accessible to resource persons visiting schools throughout Florida.

Additionally, training programs for teachers, such as the statewide Justice Teaching Institute sponsored by the Florida Supreme Court, provide a balance of clinical and academic experiences to prepare teachers to teach effectively about the courts. Through this program, teachers experience justice first-hand. All justices serve as faculty in this innovative professional development model which has been replicated in multiple states and has been explored by many countries as a model training program. A wide range of methodologies demonstrate legal processes and concepts.

Conclusion

A reciprocal relationship with public education and our courts provides students and other audiences direct access to the judiciary and opportunities to learn about this important institution of democracy. It provides a human side to justice. Studies demonstrate that individuals with more knowledge about the courts are more likely to support the courts and develop increased trust and confidence in the judicial branch. When citizens support the American tradition of judicial independence, they act to protect their rights to liberty under law.

(1) John J. Patrick, Judicial Independence in United States Government, Judicial independence: understanding the courts and the constitution (2000).

(2) Clarence Page, Freedom Just Another Word for "Huh"?, Palm Beach Post (Sept. 28, 2002).

(3) James Madison, The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, the Federalist papers no. 47 (Feb. 1, 1788), available at www.foundingfathers.info/federalistpapers/fed47.htm.

(4) Alexander Hamilton or James Madison, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, the Federalist papers No. 51 (Feb. 8, 1788), available at www.foundingfathers.info/federalistpapers/fed51.htm.

(5) John J. Patrick, Judicial Independence in United States Government, Judicial independence: understanding the courts and the constitution (2000).

(6) Id. at 11.

(7) Id.

(8) William H. Rehnquist, Dedicatory Address: Act Well Your Part; Therein All Honor Lies, 7 pepperdine l. rev. 227 (1980).

(9) Declaration of independence, 11 (1776), available at www.ushistory.org/declaration/document/.

(10) Speak to American Values, Justice at Stake, www.justiceatstake.org.

(11) Id.

(12) Id.

(13) Id.

(14) National Conference on Public Trust and Confidence in the Justice System, Washington, D.C.

(15) Liz Halloran, What Supreme Court? Many Americans Lack Basic Supreme Court Knowledge, usnews.com (September 29, 2006), available at www. usnews.com/usnews/news/articles/060929/ 29annenbergstudy.htm.

(16) Id.

Joseph Hatchett became the head of Akerman Senterfitt's appellate division in 1999 after retiring as chief judge of the U.S. Court of Appeals for the 11th Circuit. Appointed to the Florida Supreme Court in 1975, Hatchett was the first African-American elected to the highest court of a state and the first African-American elected to any public office in a statewide election in the south since reconstruction when in 1976, he won a statewide election to remain on the Florida Supreme Court

Annette Boyd Pitts is the founding executive director of the Florida Law Related Education Association, Inc. Pitts administers a wide range of law and civic education programs for students in grades K-12. While her primary responsibilities are in Florida, Pitts also works with education for democracy efforts in new and emerging democracies. Pitts is vice chair of The Florida Bar Law Related Education Committee.