The Correspondence of Thomas Jefferson
By Subject
CONSTITUTION / UNITED STATES / SEPARATION OF POWERS
I go further than you do, if I understand rightly your quotation from
the Federalist, of an opinion that "the judiciary is the last
resort in relation
to the other departments of the government, but not in
relation to the rights of the parties to the compact under which the
judiciary is derived." If this opinion be sound, then indeed is
our Constitution a complete felo de se. For intending to
establish three departments, coordinate and independent, that they
might check and balance one another, it has given, according to this
opinion, to one of them alone, the right to prescribe rules for the
government of the others, and to that one too, which is un-elected by,
and independent of the nation. For experience has already shown that
the impeachment it has provided is not even a scare-crow; that such
opinions as the one you combat, sent cautiously out, as you observe
also, by detachment, not belonging to the case often, but sought for
out of it, as if to rally the public opinion beforehand to their
views, and to indicate the line they are to walk in, have been so
quietly passed over as never to have excited animadversion, even in a
speech of any one of the body entrusted with impeachment. 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
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. My construction of the
Constitution is very different from that you quote. It is that each
department is truly independent of the others, and has an equal right
to decide for itself what is the meaning of the Constitution in the
cases submitted to its action; and especially, where it is to act
ultimately and without appeal.
to Spencer Roane, 6 September 1819
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