Did our founders set up a restricted national government in terms of power and jurisdiction only to be overruled by five unelected judges who sit on the Supreme Court? Is that what the War for Independence was all about?
Instead of having a king and parliament to contend with, our founders chose to turn over their government to untouchable judges? I don’t think so.
While Thomas Jefferson was not present when the Constitution was drafted, he is often cited as an authority on limited government authority. Here are some of his thoughts on the Judiciary:
- “The Constitution … meant that its coordinate branches should be checks on each other. 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.” — Thomas Jefferson to Abigail Adams, 1804.
- “The 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.” — Thomas Jefferson to W. H. Torrance, 1815.
- “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power 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, 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.” –Thomas Jefferson to William C. Jarvis, 1820.
- “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. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.” — Thomas Jefferson to William Johnson, 1823.
- “But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.” — Thomas Jefferson to John Cartwright, 1824.
Jefferson wrote the following in the 1798 Kentucky Resolutions: 1. “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government … and whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
Let’s not forget the Tenth Amendment to the Constitution that also applies to the Supreme Court:
“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.”
The several states need to stand their ground against national tyranny. Each state is a government that can interpose itself when unconstitutional provisions are forced on its jurisdictional rights.