Judicial Tyranny Was Foreseen
by Thomas Jefferson
In Marbury vs Madison Jefferson Saw the Beginning of Judicial Tyranny
Early in his career Jefferson was concerned for the independence of the judiciary in order that it be strong and to prevent injustice. However, when the federalists focused their efforts on the transfer to Washington of the power reserved in the Constitution to the States, using the power that they had obtained in the judiciary, he began to view with alarm the subversion of the judiciary and its independence of the nation. To the prevention of their objective Jefferson devoted the rest of his life. The following quotations may be found in Jefferson: Magnificent Populist, by Martin Larson, pp 136-142
Judicial tyranny was the subject of many of his letters ...
BUT THE OPINION which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.
Letter to Mrs. John Adams, Nov. 1804
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 a subtle 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
Jefferson saw judicial tyranny as an all-out assault on the Constitution.
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
A Constitutional Amendment
to Thwart Judicial Tyranny?
More than once Jefferson expressed his desire for a Constitutional amendment that would clearly block the power the judiciary had unconstitutionally usurped, which they began to do in 1805, in the case of Marbury v. Madison, and got away with it.
But the Constitution did not give the judiciary power to legislate, nor to decide for the other branches what is, or is not, constitutional. That is a power they left with the people, according to the Ninth and Tenth Amendments:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. -- Amendment IX
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. -- Amendment X
Is there anyone on the political scene today
who understands about judicial tyranny and has a plan to do something about it?
Glad you asked!
The Constitution Party is the largest and fastest growing minor party and has been gathering momentum since its founding in 1992. That year its standard bearer, Howard Phillips, was on the ballot in more than 20 states. In 1996 he was on the ballot in more than 30 states. In 2000 he was on the ballot in more than 40 states, and with write-ins was an option in 48 states. The 2004 standard bearer: Michael Peroutka.
In its Platform the Constitution Party addresses specifically the issue of
judicial tyranny.
Over the years, especially in the 20th Century, and now even more in the 21st, our Constitution has been rendered almost meaningless while our government has become unaccountable.
See how that has been playing out
in ways that affect you, and how we can restore accountability.
This article is an example of articles gathered from three centuries, contained in ...
The Treasury,
which is bound with ...
Remarkable Remedy
-- by Jean Carpenter
Remarkable Remedy is the second edition of what the late Peggy Poor, Editor of The Upright Ostrich, hailed as the best primer for people to understand how our predicament came about. Find out how we lost government accountability and how to restore it.
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