Thursday, January 13, 2005

The judiciary, the way of the Left....

African American Newspaper, The 19th Century:
".....I will next read from his letters, to show what he thought of the Supreme Court, which President Buchanan and his followers have apotheosized since its determination of the Dred Scott case. In a letter of W.H. Torrance, dated Monticello, June 11, 1815, Mr. Jefferson says:

The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them, more than to the Executive or Legislative branches. Questions of property, or character, and of crime, being ascribed to the judges through a definite course of legal procedure, laws involving such questions belong, of course, to them; and as they decide on them ultimately, and without appeal, they of course decide for themselves. The constitutional validity of the law or laws again prescribing Executive action, and to be administered by that branch ultimately, and without appeal, the Executive must decide for themselves also, whether under the Constitution they are valid or not. So also as to the laws governing the proceedings of the Legislature, that body must judge for itself the constitutionally of the law, and equally without appeal or control from its co-ordinate branches. And, in general, the branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other co-ordinate authorities. It may be said that contradictory decisions may arise in such case, and produce inconvenience. This is possible, and is a necessary failing in all human proceedings. Yet the prudence of the public functionaries and authority of public opinion will generally produce accommodation.
Jefferson's Complete Works, vol. 6, pages 661,662.

It would be difficult to find two theories of the Constitution more widely different than this one of Jefferson, and that of President Buchanan, as laid in his inaugural, his Silliman letter, and his messages in regard to Kansas. But I will come to that presently. On this subject of the power of the Supreme Court, numbers of Mr. Jefferson's letters might be quoted, to the same purport as the above. I have only time to present brief extracts. In a letter to Judge Roane, date Poplar Forest, September 6, 1819, he says, referring to the Supreme Court:

In denying the right they usurp, of exclusively explaining the Constitution, I go further than you do, if I understand rightly your quotation from the Federalist of an opinion that 'the Judiciary is the last resort in relation to the other departments of the Government, but not in relation to the rights of the parties to the compact under which the Judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too which is unelected by, and independent of, the nation.

* * *
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 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.
To Thomas Ritchie, whose name as the editor of the Richmond Enquirer, is familiar to us all, Mr. Jefferson wrote, under date of December 25, 1820, as follows:

The Judiciary of the United States is the subtle corps of sappers and miners, constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special Government, to a general and supreme one alone.
I should weary you if I were to quote a tithe of what Mr. Jefferson has left us on this subject. What I have presented will suffice to show you that he entertained a deep-seated jealousy of Federal encroachments upon the rights of the States, and that he utterly repudiated the modern doctrine of the party which claims to be Democratic, that the Supreme Court is the final arbiter of constitutional questions."
April 21, 1859
Washington, D.C., Vol. XIII No. 642 P. 61)

Contrast that with what judges say, in "decisions" not unlike those at issue there.

"Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals."
(112 S. Ct. 2816 (1992) (emphasis added)
Planned Parenthood of
Southeastern Pennsylvania v. Casey)