Thursday, January 13, 2005

Jefferson on the judiciary, what he saw from the beginning...

African American Newspaper, The 19th Century:
"The Evening Post republishes certain letters of Thomas Jefferson, warning the country against the dangers to be apprehended from the aristocratic and despotic organization and construction of the Supreme Court. Out of the inspired volume, we have never read warnings which were more completely justified by time. We can say nothing to add to their force.

.....Mr. Jefferson held:

First. That the Federal Judiciary is no more competent to construe and interpret the Constitution for the other departments of the Government - the Legislative and Executive - than they are to construe it for the Judiciary.

Second. - “That each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately, and without appeal.”

Third. That “the germ of the dissolution of our Federal Government is in the constitution of the Federal Judiciary” - “an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, advancing its noiseless step like a thief over the field of jurisdiction, until it shall be usurped from the States, and the Government of all be consolidated into one.”

Fourth. That the tendency to consolidate the Government by strengthening the hands of the Federal Judiciary, constituted, in his day, the difference between Republicans and pseudo-Republicans - real Federalists.

Fifth. That the judges should be appointed for terms not exceeding six years, and renewable by the President and Senate. “The insufficiency of the means provided for the removal of the judges gave them a freehold and irresponsibility in office; their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; these decisions, nevertheless, become law by precedent, sapping by little and little the foundations of the Constitution, working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secure against all liability to account.”

Sixth. “The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundation of our confederate fabric. They are construing our Constitution from a co-ordination of a general and special Government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, 'boni judicis est ampliare jurisdictiomem.' (To amplify jurisdiction is characteristic of a good judge.) The power of declaring what the law is, ad libitum, by sapping and mining, slyly and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt.”

Seventh. “That a Judiciary, independent of a King or Executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a Republican Government.”

How far the Supreme Court of the United States has justified the anxiety which Jefferson felt and expressed in regard to its influence upon the Federal Government, we leave to the judgment of the public."
July 9, 1857
Washington, D.C., Vol. XI No. 549 P. 112)