from the Congress Action newsletter

Jefferson On Judges

by: Kim Weissman
July 20, 2003

"…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." —Thomas Jefferson

The Congress is back in session, and once again Americans need to keep a close eye on the attempts by “our representatives” to subvert our freedom. Many a pundit has noted that congressional recesses are the only times that Americans can feel safe that our freedom isn’t being subverted; but that really isn’t true, since these days “our representatives” aren’t the only ones working hard to subvert our freedom.

California voters voted to deny welfare entitlements to illegal aliens, but California judges overruled the will of the voters and threw out the restriction. Nevada voters voted (twice) that tax increases require a two-thirds legislative majority, and even amended their State constitution to that effect; but the Nevada Supreme Court simply set aside that constitutional provision, and ordered state legislators to violate the constitution they swore to uphold and raise taxes by a simple majority. And the U.S. Supreme Court recently simply set aside a federal constitutional provision mandating equal protection of the laws, and invented a new constitutional right to diversity. Those examples represent a pattern of judicial arrogance that circumvents the will of the people and the constitutions by which even the courts are supposed to be bound, and says to the people of the nation, “If you don’t like it, too bad – there’s nothing you can do about it.”

A government that derives its just powers from the consent of the governed has become a mere formality, as “our representatives” delegate increasing power over the governed to unelected bureaucrats, and as unaccountable judges usurp even more. And much to our own discredit, we increasingly seem to like it that way. Many of us simply find it easier to allow others to make our decisions for us, and cast ourselves as helpless victims of the overwhelming and ominous forces surrounding us; that way, after all, we can’t be blamed when something goes wrong – it wasn’t our fault. After all, don’t our wise and benevolent legislators, judges, and bureaucrats know what’s best for us? But what if we decided to do something about it? Is there anything that we could do, within the bounds of the Constitution?

Senior bureaucrats are appointed by the politicians we elect, and when those politicians refuse to reign in out-of-control bureaucrats we can see to it that those politicians are retired at the next election. But what about the judges – particularly federal judges with lifetime tenure? Yes, the Constitution provides that judges can be impeached, but that is, as Thomas Jefferson noted, “an impracticable thing, a mere scarecrow”. Jefferson had quite a bit to say about the judiciary he saw developing during his lifetime, and he did not like what he saw: “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.”

In his later years Jefferson warned: “We already see the [judiciary] power, installed for life, responsible to no authority … advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions for the annihilation of constitutional State rights and the removal of every check, every counterpoise to the engulfing power of which themselves are to make a sovereign part.”

In 1804 – perhaps not coincidentally just one year after the Supreme Court usurped the role of ultimate and unchallengeable arbiter of the Constitution in Marbury v. Madison – Jefferson wrote, “…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.” Jefferson later wrote,

“To consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. … their power [is] the more dangerous as they are in office for life and 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…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.”


“It has long been my opinion, and I have never shrunk from its expression... that the germ of 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, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.”

Jefferson concluded, “But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs.” Perhaps it is time for the States – and the people – to reassert their authority “in convention”.

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

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23 jul 2003