The grammar in matters of values of the authors of our Constitution of 1853 took into account -at least- three antecedents: the Constitution of Philadelphia of 1787, "The Federalist: A Collection of Essays, Writings in favor of the New Constitution, as agreed by the Federal Convention" (Alexander Hamilton, James Madison and John Jay, 1788), and the "Bases and starting points for the political organization of the Argentine Republic" by Juan Bautista Alberdi, of 1852.
These readings determined a presidential executive arm; a legislative branch to check and balance; and judges in a position to establish whether the acts of Congress were constitutional and what should be done if the government behaved in a manner contrary to what is established in the National Constitution. The topographical theodolite of history did not fail them: the text is one of those that most resisted the passage of time on a world scale.
That splendid judge who was Enrique Petracchi has said that the design of the judicial control of Argentine constitutionality, and the role of the Court, have "... as an inspiring model for the United States of America." The role of judges and the Court has been relatively peaceful, unlike that of sources. It is that deciding what they are supposes the adhesion to certain philosophical principles that govern it. Or distance yourself from them.
What makes federal judges so important is this power of determination, and that's why the Supreme Court is called "the closing body of the system." They have neither the sword nor the purse (which are reserved for the legislative and executive branches), that is, neither the forces of coercion nor the public resources, but they do have the last word, because in this way it is determined in essence by our system. Robert H. Jackson put it this way: "We don't have the last word because we are infallible, but we are infallible because we have the last word."
It is not "the last word" of the classical expression "Roma locuta, causa finita". This Latin expression, "... once Rome spoke the case is closed", dates back to the year 417, and was said by St. Augustine of Hippo (354-430). But the power that lay in each letter derived from the Roman Empire, was expressed in other ways and had other consequences, different from those of a representative, republican and federal context.
Although with different characteristics and different names, always autocratic, the emperor was the highest political and religious authority of the Empire. Therefore, it is one thing to admit the faculties by divine descent or by what the coffee grounds say when it is stirred, and another is to interpret pre-existing norms and give them a meaning according to the text of the Constitution.
In the case of judges, the system within which it orbits defines its power. Our system requires actors to exhibit special skills: suitability, exemplarity, sense of proportions, awareness of their limits, notion of balance, courage: if they know right, so much the better (the irony is not mine). If these properties are expected in a trial judge, they are irreplaceable in a court judge.
Of course, there is more than one way of thinking about what the function of the court is, and of imagining what performance fits the one who thinks about it reasonably. But never any function, nor all performance. Being flexible with the application of the law is not the same as making push-ups on the legal situation. The first thing is activism; the second opportunism.
It is precisely in the constitutional jurisdiction where, with more assiduity, one can find the gravels that occur when there is a cross between politics and law. It is not that the judicial function is not political: if it is to sanction a law, how could it not be to declare it unconstitutional? The chalice that judges should keep away from themselves is party politics.
Jagdish Sharan Verma, one of the best-regarded supreme judges in Indian history, offers some examples.
I remember the case "Vineet Narain vs Union of India". There, Jagtdich Verma forged for judicial use the tool of the "continuous mandate" to ensure proper investigation in corruption cases. The "Continuing Mandamus" is an institution that allows an open case, until the court order is fully complied with. In the case cited, it consisted of shielding the Central Bureau of Investigation from political interference. It also required the legislature to approve directives and their parameters through appropriate legislative measures. It is easy to imagine the values held by this irreducible man.
In order to achieve their impartiality, judges acquired various functional guarantees: the institutional separation of the judge from the public prosecution; the other functions ("powers") of the State; and its separation from commissioning or delegating authorities of any kind, in addition to the exclusively legal predetermination of its competences. The jurist Luigi Ferrajoli notes that impartiality, beyond institutional guarantees, "... It is an intellectual and moral habit, which does not differ from that which should preside over any form of research and knowledge."
Such was the environment in which Judge John Sirica acted, who forced former President Nixon to hand over secret tapes in the "Watergate scandal". That episode culminated in Nixon's resignation. Sirica, son of immigrants, canillita, mechanic and boxer in his youth, passed to celebrity from one moment to another. "An unlikely hero," some said, a "judge of the gallows" in criminal cases, who spoke with clichés and wore navy blue blazer and gray high school pants, helped to exhibit before history traces of the interaction between the three arms of the American political system and the values that sustained the constitutional skeleton.
Democracy and the republic are fragile greenhouse flowers. Sometimes cold, sometimes insufficient, sometimes pompous. Always unique flowers.
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