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The Dangers of Judicial Supremacy and the Judicial Branch Exceeding its Authority: Quotes on Religious Freedom
BY PRESIDENTS
Thomas Jefferson (1799)
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force & cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act . . . &c., &c., have been solitary, unconsequential [sic], timid things, in comparison with the audacious, bare-faced and sweeping pretension to a system of law for the U S, without the adoption of their legislature, and so infinitely beyond their power to adopt.” (SOURCE: Letter from President Thomas Jefferson to Edmund Randolph, Aug. 18, 1799, in Thomas Jefferson: Writings 1066 (Library of America 1984) (Merrill D. Peterson, ed) (P. 36).
In commenting on this passage, Professor LaCroix of University of Chicago Law writes,
August 1799, Jefferson had confided his fears about the expansion of the federal government – in particular, the federal judiciary – in a letter to Edmund Randolph. Specifically, Jefferson worried that the growth of federal courts’ jurisdiction would lead to a body of federal common law separate from state law that would become a tool of federal oppression. Jefferson’s use of pronouns to refer to the government – and thus to the Federalists – is particularly illuminating. LaCroix, Alison L., The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic, (Working Paper for SUPREME COURT REVIEW) (Jan. 2008), available at http://ssrn.com/abstract_id=1085378. )
Thomas Jefferson (1820)
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. (SOURCE: Letter from Thomas Jefferson to William C. Jarvis, September 28, 1820)
Thomas Jefferson (1821)
The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them. (SOURCE: Letter from Thomas Jefferson to Spencer Roane, 1821, in the Jeffersonian Cyclopedia (Funk and Wagnalls 1900) (P. 842))
John Marshall has made his decision; let him enforce it now if he can. (SOURCE: Andrew Jackson, as quoted by Horace Greeley, registering his disagreement with the Marshall Supreme Court’s decision in Worcester v. Georgia (1832). Meacham, Jon., American Lion: Andrew Jackson in the White House. (Random House 2009) (P. 204))
Andrew Jackson (1832)
It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent…
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve. (SOURCE: President Jackson’s Veto Message Regarding the Bank of the United States, July 10, 1832, in which he disagrees with proponents of the Bank who cite Supreme Court precedent as reason that the Bank is constitutional, from ACompilation of the Messages and Papers of the Presidents Prepared under the direction of the Joint Committee on printing, of the House and Senate Pursuant to an Act of the Fifty-Second Congress of the United States. (Bureau of National Literature, Inc. (1897))
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