Running head: BALANCE OF LAW AND LIBERTY 1

Balance of Law and Liberty

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Balance of Law and Liberty

A Well-Crafted legislation is good for both security and liberty. Persistent coherence to

the current status of freedoms may damage the most fundamental freedoms than a judicious

modification of rules would. Therefore, a congress action performed under an open national

debate has a likelihood of being more sensitive to civil freedoms than the unilateral increase of

administrative powers. Courts may check excess power of the executive by setting the limits

which the executive can enforce. The government agency can also create respect for civil

liberties by avoiding unwarranted obstacles when performing their duties.

There is a need for security and liberty to be free from tension. Often, policies that ensure

the security of a nation do not necessarily oppress the liberty of the people. Similarly, protection

of people’s liberty does not threaten the security of a nation. It is therefore clear liberty and

security are two variables that reinforce each other (Taylor Jr, 2003). A threat to a country’s

security consequently threatens the people’s liberty. It is the duty of the legislature to enforce

laws that grant people the right of expression, right to peaceful demonstration, and the right to

appeal to the government while still prohibiting seizures to ensure that the citizens are free from

arbitrary oppression for opposing government policies. Formulation of constitutional provisions

that check all the branches of government is necessary. Emphasis on separation of authority

between the federal administration and the states is significant in ensuring a balance between

liberty and security. Such arrangement is especially important in ensuring flexibility for security

provision and the safeguarding of liberties.

According to Taylor (2003), courts, Congress, the president, and the public have

demarcated the state of the protected right since the formation of the nation. It is the duty of the

Supreme Court, the Congress, and the Ford and Carter governments to place restrictions on the
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security force and intelligence agency. The limits should aim at eradicating threats to liberties

and security of the public (Taylor, 2003). The legislature may consolidate and extend the

restrictions on the law enforcement agencies to wiretap, seize, search, or interrogate suspected

criminals. Clamping down on domestic surveillance by the intelligence agency is also a

significant move by the legislature that may help check limitation to people’s liberty. The

legislature should implement a law that lowers the problem of evidence from “probable cause” to

“reasonable suspicion.” A balance between liberty and security could be formed by authorizing a

search or wiretapping individuals if the law enforcement or the intelligence agency has a

reasonable ground to suspect.

The core function of the judicial service is to oversee and constrain political power

exercise by the legislative majorities. The judiciary and the legislature are two independent but

coequal branches of the government that must work together for the government to function. It is

the responsibility of the judiciary to apply the laws passed by the legislature in concrete cases

(Vanberg, 2001). Therefore, the judiciary is responsible for explaining what the law drafted by

the legislature is and apply the law according to the constitution through a process known as

judicial review. The judiciary may support or void the laws formulated by the legislature through

judicial review. Judicial review is thus the process through which the actions of either the

legislature or the executive are subjected to review by the judiciary (Fabbrini, 2014). Therefore,

the judiciary examines the statutes of the legislature and determines if they violate or contradict

any provision of the existing law or state constitution. The judiciary has the capacity of shaping

law considering that it has the ability to meaningfully manipulate. In an occasion where the

judiciary voids a law, the legislature is obliged to address the issue by reformulating the

conflicting section (Vanberg, 2001). Similarly, drafted administrative procedures may require
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changes in agency policies. The changes are long recognized by the judiciary. Therefore, any

executable law or constitutional provision by the legislature relies upon the assistance and

judgement of the judiciary.

Separation of authority between the legislature and the judicial system is important in

ensuring that each division does not exercise the core functions of the other. The separation of

power between the two divisions of the government provides for checks and balance and ensures

that there is no concentration of power. Separation of power is thus necessary according to the

notion that every division of the government possesses a special combination of powers that are

exclusive and thus cannot be shared with any other branch of the government (Vile, 2012). The

doctrine of separation of power states that “the legislature cannot exercise judicial powers, and

cannot reverse, vacate, or overrule the judgment or decree of a court.” The legislature, therefore,

is unable to dictate the judiciary on the ways to interpret a certain law nor can it change the rule

of the decision of the judiciary. Separation of power is also necessary for preventing the

legislature from impacting the judicial branch without authority. However, the Lowa Supreme

Court recognizes the general authority of the legislature to impact the activities of the courts

ultimately.

On the other hand, separation of power recognizes that the primary role of the judicial

system is to clarify the statutes but not to model the statutes. The responsibility of the judiciary

arises upon a request to clarify a certain statute or a statutory provision. The Lowa Supreme

Court outlines that the judiciary cannot change the terms of any statute. However, the judicial

system may, under limited circumstances, change an unplanned clerical error which may void a

statute making it an unreasonable law. The common law excludes the courts from the law

making process. The common law derives the authority from the decrees of the courts but not
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from the declarations of the legislature. The authority that formulates the common law is

influenced by the fact that the legislative action can modify it (Vile, 2012). In areas where there

is no legislative action, the judiciary can possess a residuum of intrinsic common statutory

authority to assume rules that allow it to achieve an independent statutory responsibility. The

power availed by the common law may enable the judiciary to cast-off contributory negligence

as an effort to adopt a reasonable fault or enable the local court to govern cases conduct.
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References

Fabbrini, F. (2014). The euro-crisis and the courts: judicial review and the political process in

comparative perspective. Berkeley J. Int'l L., 32, 64.

Taylor Jr, S. (2003). Rights, liberties, and security: recalibrating the balance after September

11. Brookings Review, 21(1), 25-32.

Vanberg, G. (2001). Legislative-judicial relations: A game-theoretic approach to constitutional

review. American journal of political science, 45(2), 346-361.

Vile, M. J. C. (2012). Constitutionalism and the Separation of Powers. Liberty Fund.