We learn in school that there are three branches of government: the executive, the legislative, and the judicial. True enough as far is it goes.
The executive is comprised of the president and his cabinet. The executive branch executes and enforces the law. The legislative branch—the House and Senate, collectively, the Congress—well… they legislate. It is their office to “make” the laws. It also lies with the legislative branch to confirm (or deny) certain presidential appointments and, where circumstances warrant, to declare war. The judicial branch is the “referee.” It is up to the judiciary to resolve disputes and interpret the law.
Obviously, the three-headed Hydra of government is intertwined. The president appoints the justices who must be confirmed by the Senate but who, once confirmed, are free of party politics and independent of either of the other branches. Supreme Court justices may serve for life. The legislature may enact laws which the president may veto but a presidential veto may be overridden by the legislature. Laws enacted by the legislature may be ruled unconstitutional by the court in which case the law may be modified, repealed, or otherwise eviscerated. Executive action may equally be shot down by the Court. The legislature retains and may exercise the power of impeachment which, if circumstances warrant, may result in the ouster of a president or justice.
Checks and balances. This is what keeps the engines of our democracy humming.
But what about the Fourth Estate? Or, arguably, the Fifth?
First, what exactly is an “estate?”
As used in this context, the best definition is a simple one. An “estate” is a social or political class. And the Fourth Estate is, specifically, the press.
In 1787, in his book On Heroes and Hero Worship: Thomas Carlysle wrote that “[British statesman, parliamentary orator, and political thinker, Edmund] Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important by far than they all.” In his coinage of the term—whether truly attributable to him or not—Burke would have been making reference to the traditional three estates of Parliament: The Lords Spiritual, the Lords Temporal, and the Commons.
Like so many things seeded in the soil of the Mother Country, we have borrowed the term, chiseled it into an American form, and applied it to our own tripartite system.
The press—the media—is “more important by far then they all.”
The Fourth Estate is guaranteed protection under the Constitution. In fact, you can find it right up front. The First Amendment guarantees freedom of (and from) religion, speech, the press, assembly, and petition of grievances against the government.
Specifically, the first amendment holds that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
To vivisect the part of interest, Congress (i.e. the House and Senate) shall make no law (i.e., shall not legislate) to abridge (i.e., to reduce, diminish, or deprive) freedom of the press. If not quite absolute, freedom of the press is a fundament of a free and open democracy.
When demagogues bloviate about limiting or restricting the press, they are barking up the wrong constitutional tree. To fetter the fourth estate would be on par with establishing a state religion, hushing free speech, or disallowing the right of the people to assemble, any of which would be hallmarks of autocracy. The Fourth Estate—while not government as such—is the fourth leg of what otherwise would be a tottery three-legged stool.
What then of the Fifth Estate? So far as I know, I’m the first to use the term. But what I mean by it is “We the People.” We, too, are guardians of democracy and we too must shout out if and when we see abuse by those cloaked with authority. Our “estate”—our social or political class—is who the Congress, the Executive and the Judiciary answer to and serve. Democracy is, after all, government by the people wherein the supreme power—that greater than any of the three branches individually or collectively—is vested in The People.
Our estate is guaranteed under the Constitution too. It appears even before the First Amendment. The Preamble to the United States Constitution begins with these words; “We the People, of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” As “We” establish the system of governance, original power lies with us and is retained by us.
In these turbulent times, it does us well to remember that the Fourth and “Fifth” Estates are where liberty itself resides. Any effort to limit or disbar that power must be met with an outcry of the sort which gave rise in the primordial late 18th Century to democracy itself.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business & commercial transactions, real estate & development, family law, custody, & divorce and civil litigation.
Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: Robbins@SLBLaw.com.