The Correspondence of Thomas Jefferson
By Subject
CONSTITUTION / UNITED STATES / SEPARATION OF POWERS
You seem . . . 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. 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, 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. The judges certainly have more
frequent occasion to act on constitutional questions, because the laws
of nieum and tuum and of criminal action, forming the
great mass of the system of law, constitute their particular
department. 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. I know no safe depository of the ultimate powers of
the society but the people themselves; and if we think them not
enlightened enough to exercise their control with a wholesome
discretion, the remedy is not to take it from them, but to inform
their discretion by education. This is the true corrective of abuses
of constitutional power. Pardon me, Sir, for this difference of
opinion. My personal interest in such questions is entirely extinct,
but not my wishes for the longest possible continuance of our
government on its pure principles; if the three powers maintain their
mutual independence on each other it may last long, but not so if
either can assume the authorities of the other.
to William Charles Jarvis, 28 September 1820
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