The role of the Judiciary branch has become much more than was intended. Today it is commonly believed that role of the Judiciary Branch is to interpret the Constitution and limit the powers of the other branches of government. The Supreme Court's power to do this is its power of judicial review, where it determines which laws and policies are constitutional, or allowable, and which are not. This was not the stated role of the Judiciary Branch in Article III of the Constitution, nor was it the intended role per Federalist Papers.
The founders created our government so that the freedom they had just won would be protected for them and for all future generations of Americanns. In order to assure this protection, they adopted the concept of rule of law. The term rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.
This concept was not common at that time. Most, if not all, nations at that time adhered to what is commonly called arbitrary law. Under arbitrary law, the law applies to certain entities, it is not necessarily publicly known or even written, and it is not evenly or independently adjudicated. It was more common in most countries to have rulers who were considered to have divine right, and so they were the law.
A critical concept under rule of law is that the burden of proof lies with the state as opposed to the defendant. Under arbitrary law, if the state accuses a citizen of committing a crime, the state does not have to prove guilt, but the citizen has the duty of proving innocence. Our founders declared that the burden of proof in our system would lie with the state. The defense is not even required to present a defense if they believe the state has not adequately proven guilt. This is referred to as burden of proof and determines where that burden lies.
Our society totally misunderstands this concept to the point where it is commonly held that people are innocent until proven guilty. Guilt or innocence has nothing to do with a court. An individual has either committed the act and is therefore guilty or they have not and is therefore innocent. Any verdict rendered by any court does not change the fact of actual guilt or innocence. The defense attorneys and some citizens want the public to belief the phrase, innocent until proven guilty is literal. It is presumption of guilt and burden of proof that are the protectors of freedom.
The rule of law also states that laws must be written and made available to the public. This also protects our freedom. The court, in rendering any ruling, can only render that ruling considering what the law states. The court must adjudicate impartially, being blind as to who the defendant is. We have recently witnessed a written law being applied differently depending on the defendant. One defendant, a member of the armed forces, was found guilty for mishandling classified information. The other individual, a cabinet secretary, was excused under the same law even though they also clearly mishandled classified information. This is the exercise of arbitrary law and not rule of law.
The law is to be written and made known to the public so that rulings are rendered based on what the law states. Kings, emperors, and czars, who proclaimed themselves to be appointed by God and thus having divine rights, assumed the role of knowing intent, even if it was different from what was written. Our Judiciary Branch, specifically members of the Supreme Court, Appellate Courts, and even District Courts have claimed divine rights determining their rulings based on what they deemed to be intent and not what was written.
The Chief Justice of the Supreme Court determined that the word penalty really meant tax. The law clearly reads penalty. The regime responsible, stated publicly that it was a penalty. Only when the regime argued before the Supreme Court did they say they intended tax. The Chief Justice assumed the position of divine right and determined that penalty really means tax. He violated the core of the concept of rule of law and applied arbitrary law.
This same Chief Justice of the Supreme Court than determined that those writing laws, including members of congress do not understand that a capital S in front of the word State gives it an entirely different meaning from when the word state begins with a small s. The law, that gave us Obamacare, clearly had State written and not state. The Chief Justice again assumed divinity as would a king, an emperor, or a czar and said he in fact knew that state was intended even though State was written. He again violated a core principle of rule of law and exercised arbitrary law.
This idea of a judge assuming divine right has transcended to all courts. Today we have district and appellate judges determining that a legally written declaration by the executive does not meet their standards, and they are divine, because they knew the clear intent of the author. Remember, they had heard words from this author on the campaign trail, and they, having divine insight, understood the authors heart and his intent. This is a clear violation of the concept rule of law.
Rule of law is only applicable to free and independent societies. Arbitrary law is only applicable to totalitarian societies. Our founders protected their freedom and our freedom by implementing rule of law. The very branch of government, the Judiciary Branch, who is mostly responsible to protect the concept of rule of law, is leading the charge to eradicate rule of law and apply arbitrary law. The Judiciary Branch is now an important and major player in the promise to fundamentally transform the United States from a free and independent nation to a Marxist totalitarian state. They advance that transformation every time they violate rule of law and rule under arbitrary law, wittingly or unwittingly.