- Post 07 June 2012
- By TenthAmendmentCenter.com
Thomas Jefferson, a stanch advocate of decentralized power, recognized that a federal government empowered to judge the extent of its own authority was one that would never remain limited in size or scope. Because of this, the power of the federal judiciary was always of great concern to him. The following is a small, but representative, sample of a number of Jefferson’s views on the power of the judicial branch of the federal government.
He said judicial tyranny made the Constitution “a thing of wax.”
If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law … — Letter to Judge Spencer Roane, Nov. 1819
Jefferson was plainly alarmed by the possibility of judicial tyranny.
You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. …. — Letter to Mr. Jarvis, Sept, 1820
Jefferson plainly had an answer against judicial tyranny.
This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … . But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but … . The ultimate arbiter is the people …. — Letter to Judge William Johnson, June 1823
He saw where judicial tyranny was leading.
When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated …. —Letter to C. Hammond, July 1821
He saw judicial tyranny as an undermining of the Constitution.
The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet. … I will say, that “against this every man should raise his voice,” and, more, should uplift his arm … — Letter to Thomas Ritchie, Sept. 1820
I fear, dear Sir, we are now in such another crisis [as when the Alien and Sedition Laws were enacted], with this difference only, that the judiciary branch is alone and single-handed in the present assaults on the Constitution. But its assaults are more sure and deadly, as from an agent seemingly passive and unassuming. — Letter to Mr. Nicholas, Dec. 1821
He saw judicial tyranny as the greatest danger to the nation.
… there is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the Supreme Court. — Letter to William Johnson, Mar. 1823
For judges to usurp the powers of the legislature is unconstitutional judicial tyranny.
… One single object … will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation. — Letter to Edward Livingston, Mar. 1825
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