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In his letter to Judge Spencer Roane, Thomas Jefferson argues against exclusive judiciary construction of the Constitution; such exclusive power of constitutional interpretation would, according to Jefferson, undermine the principle of checks and balances-since it would allow the judiciary department to prescribe rules for the government of the others. If the judiciary has sole power of constitutional interpretation, then the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Jefferson instead recommends that each department be truly independent of the others and have the right to decide for itself the Constitution’s meaning in cases submitted to its action-especially in those cases where it is to act ultimately and without appeal.
Marshall and Jefferson present two diametrically opposed views of the nature of constitutional interpretation, and it is regrettable that Marshall’s view has been virtually uncontested in the United States during the past century; Jefferson was correct to warn that giving the Supreme Court sole ultimate power to interpret the Constitution would shift supremacy from the text of the Constitution to the subjective wishes of Supreme Court justices.
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Samuel Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
Chase is best known, however, as the only Supreme Court Justice to be impeached. After federal judge John Pickering of New Hampshire was impeached and convicted in 1804, Chase was impeached by the House of Representatives, pursuant to a quiet request by President Thomas Jefferson.
Chase was impeached for his conduct in several "political" trials and his intemperate remarks to a Baltimore grand jury while riding circuit. In early February 1805, thirty days after he was impeached by the House, he was tried in the Senate. The Senate prosecutor was Jefferson’s and John Marshall’s distant cousin, John Randolph. Randolph was an extremely partisan Republican. He was also an opium fiend who had a vicious tongue.
At this time there were 34 senators, 25 Jeffersonian-Republicans and 9 Federalists. If the Senators voted along party lines, Chase was facing conviction. However, in the period between the presentment of the Articles of Impeachment to the Senate, and the trial, Randolph assailed Jefferson’s attempted compromise of the Yazoo land fraud (which would not be settled until 1814. The Supreme Court, in an 1810 decision, upheld the sale of 25 million acres of Georgia land to speculators. The sale occurred after nearly the entire Georgia legislature was bribed.
The Court held the act of sale by the Georgia legislature was constitutional under either principles of natural law or the contracts clause, Art. I, section 10, clause 1). The Republicans disaffected with Jefferson's efforts to settle the Yazoo land fraud scandal joined with the nine Federalists to block the 2/3 vote necessary to convict Chase. No more than 19 votes were garnered for any of the eight Articles of impeachment. The Article that received that number of votes for conviction concerned Chase’s excoriation of the Baltimore Grand Jury in May 1803.
Judicial Review
The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review.
But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government. Since the constitution does not give this power to the court, you might wonder how it came to be that the court assumed this responsibility.
The answer is that the court just started doing it and no one has put a stop to it. This assumption of power took place first in 1794 when the Supreme Court declared an act of congress to be unconstitutional, but went largely unnoticed until the landmark case of Marbury v Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review. Since then, the idea that the Supreme Court should be the arbiter of constitutionality issues has become so ingrained that most people incorrectly believe that the Constitution granted this power.
Article III of the Constitution provides for the establishment of a Judicial branch of the federal government and Section 2 of that article enumerates the powers of the Supreme Court. Here is Section 2, in part:
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
to all Cases affecting Ambassadors, other public Ministers and Consuls;
to all Cases of admiralty and maritime Jurisdiction;
to Controversies to which the United States shall be a Party;
to Controversies between two or more States;
between a State and Citizens of another State;
between Citizens of different States;
between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
"Well," you might say, "someone has to review laws for constitutionality. Why not the Supreme Court?" Some possible answers:
First and foremost, it is not a power granted to the Supreme Court by the Constitution. When the Supreme Court exercises Judicial Review, it is acting unconstitutionally.
It is a huge conflict of interest. The Federal Government is judging the constitutionality of its own laws. It is a classic case of "the fox guarding the hen house."
The Constitution's "checks and balances" were designed to prevent any one branch of government (legislative, executive or judicial) from becoming too powerful and running roughshod over the other branches. There is no such system of checks and balances to protect the states and the people when multiple branches of government, acting in concert, erode and destroy the rights and powers of the states and the people.
Even if the Supreme Court could be counted on to keep the Executive and Legislative branches from violating the Constitution, who is watching the Supreme Court and will prevent the Judicial branch from acting unconstitutionally? Unless you believe that the Supreme Court is infallible (and, demonstrably, it is not), then allowing the Supreme Court to be the sole arbiter of Constitutionality issues is obviously flawed.
Justices are appointed for life. If the court upholds unconstitutional laws, there is no recourse. We the People cannot simply vote them out to correct the situation. Thomas Jefferson wrote, in 1823:
"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and 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 secured against all liability to account."
Lol, you know this letter means Obama's latest speech actually agrees with Thomas Jefferson, right?
Originally posted by David9176
reply to post by Ghost375
Lol, you know this letter means Obama's latest speech actually agrees with Thomas Jefferson, right?
Yes I do...the Supreme Court itself is being UNCONSTITUTIONAL for deciding what is Constitutional or not.
Originally posted by Nite_wing
Article III Section 2 states
The judicial power shall extend to all cases, in law and equity, arising under this Constitution...
Laws arising under the Constitution appears to me to give leave to question the Constitutionality of the law.
edit on 4-4-2012 by Nite_wing because: (no reason given)
I added some more to my first post. I don't think that power is too bad in of itself. It's having that power, as well as being unelected and having unlimited terms that makes it dangerous.
There needs to be something that checks and balances the supreme court.
While the only real “check and balance” on the decision making process of the Supreme Court is one of selection – the president selects the Supreme Court Justice – I would have to agree that one might consider that this is inadequate. Of course, one could also say that this is quite enough. I would suppose it depends upon whether or not you agree with the decisions of the Court!
Originally posted by David9176
reply to post by Ghost375
Lol, you know this letter means Obama's latest speech actually agrees with Thomas Jefferson, right?
Yes I do...the Supreme Court itself is being UNCONSTITUTIONAL for deciding what is Constitutional or not....in the eyes of Thomas Jefferson that is...a man who actually helped frame it!
There needs to be something that checks and balances the supreme court. Like, I don't know, maybe the people.
Originally posted by navy_vet_stg3
I think we should just make it official, and just name Obama our Dictator. Why should we have Congress or the Supreme Court? It would be much easier if we let Dear Leader decide.
Originally posted by braindeadconservatives
If I recall, Congress passed the bill first...
Originally posted by braindeadconservatives
I can only imagine when corporations have no restraints placed upon their
attempts to control America and it's individuals with legal ease and contracts.