The national era. [volume] (Washington [D.C.]) 1847-1860, 1859-04-21

eminent, or to any one of its departments, the
effect is to surrender all independence on the
part OF the States, and they are forever bound
hand and foot by the decisions of the Supreme
Federal tribunal. The Federal Government is
itself the creature of the States, and the SUI
preme Court is the creature of the Federal Gov
ernnent; hence, to make the Supreme Court
the hral arbiter of constitutional questions, is
to subordinate the creators to their creatures
creature. So reasoned Jefferson and John
Taylor of Caroline, and so believed the Re-
publican party of their day.
In order that may place this matter clearly
before you, | will read to you extracts from
Mr.. Jefferson's writings, and then propose to
contrast with them the more recent teachings
of the :so-called Democratic party.
In the 9th volume of Mr.. Jefferson's Works,
at page AGA, find series of resolutions which
the compiler of his Works thinks were the orig
inal 6f the famous Kentucky resolutions of
l799.. The Virginia resolutions of 1898, of
which you have heard SO much, were from the
pen of Mr.. Madison and they are substantially
the same as those written by Mr.. Jefferson for
Kentucky. The first of these is as follows:
al. ResOlred, That the several States COM
posinS the United States of America are not
united. on the principle of unlimited submission
to their General Government, but that by
compact, under the syle and title of Consti-
tuition. for the United States, and of amend
ments thereto, they constituted General Gov
ernment for special purposes delegated to that
Cover ament certain definite powers, reserving,
each State to itself, the resduary mass of right to
their own selfgovernment; and that whatsoever
the General Government assumes undelegated
powers, It's acts are unauthoritative, void, and
of no ;force that to this compact each State
aaco1,d aco Sta+a nd % ,ntaorral
co-Sta5es forming, as to itself, the other party
that the Government created by this compact
was not made the exclusive or final Judge of
the extent of the powers delegated to itself,
since chat would have made its discretion, and
not the Constitution, the measure of its powers
but that, as in all other cases of compact
among Powers having no common judge, each
party has an equal right to Judge for itself as
we'll OF infractiOns as of the measure and mode
of redress"
So much for Mr.. Jefferson's general view of
the re-ations of the States to the Federal Gov
eminent. l will next read from his letters, to
show What he thought of the Supreme Court,
which. President Buchanan and his followers
have apotheOsized since its determination of the
bred Scott case.
In I letter to W. II. Torrance, dated Monti-
cello, June ii, 1915, Mr.. Jefferson says:
TAe second question, whether the Judges
are INFESTED with exclusive authority to decide
on ths, constitutionality of a law has been here
toforesa subject of consideration with me in the
exercise of official duties Ger; ~ there is
not a word in the Constitution which has given
that power to them, more than to the Executive
or Legislative branches. Questions of property,
of character, and of crime, being ascribed to
the judges through a definite course of legal
procedure, laws involving such questions be-
long, 0t course, to them and as they decide on
them ultimately, and without appeal, they of
course decide for themselves. The constitution
al validity of the law or laws again prescribing
Executive action, and to be administered by
that branch ultimately, and without appeal,
the Executive must decide for themselves also,
whether under the Constitution are valid
or not So also as to the laws governing the
proceedings of the Legislature, that body must
Judge for itself the constitutionality of the law,
and equally without appeal or control from its
coordinate branches. And, in general, the
branch which is to act ultimately and without
appeal, on any law, is the rightful expositor of
the validity of the law, uncontrolled by the
opinions Of the other coordinate authorities.
1t may be said that contradictory decisions may
arise in such case, and produce Inconvenience.
This IS possible, and is a necessary failing in
all HUMAN proceedings. Yet the prudence of
the public functionaries and authority of pub
lie opinion will generally produce accommoda-
ton. 't-JefersOn's Complete Works, vol. 6, pages
Gel, Coz.
Ii would be difficult to find two theories of
the Constitution more widely different than
this enc of Jefferson and that of President
Buchanan, as laid down in his inaugural his
SIllinfan letter, and his messages in regard to
Kansas. But | will come to that presently.
On5this subject of the power of the Supreme
Court. numbess of Mr.. Jefferson's letters might
be quoted, to the same purport as the above.
have only time to present brief extracts. In
lettsr to Judge Roane, dated Poplar Forest,
September 9, 1919, he says, referring to the
Supreme Court
" la denying the right they usurp, of exclu-
sively explaining the Constitution, 90 further
than you do, if understand rightly your quo
tatiog from the Federalist of an opinion that
the Judiciary is the last resort in relation to
tie other departments Of the Government, but
not il relation to the rights of the parties to
the Compact under which the Judiciary is de-
rived If this opinion be sound, then indeed
is out Constitution complete .felo de Sc. For,
intending to establish three departments CO.
ordinate and independent, that they might
checl and balance one another, it has given,
accoyiing to this opinion, to one of them alone
nv W piCoCIlDS TuitS lOT the government
of the others, and to that one, too, which is un.
elected by, and independent of, the nation"
The Constitution, on this hy-
Potht Sis, is mere thing of wax, in the hands
Of the Judiciary, which they may twist and
shape into any form they please. 1t should be
reme.nbered as an axiom Of eternal truth in
politics, that whatever power in any Govern
ment is independent, is absolute also in theory
only 1T first, while the spirit of the people is
up, tlIt in practice as fast as that relaxes. In
dependence can be trusted nowhere but with
the people in mass. They are inherently indie
pendent of all but moral law"
To Thomas Richie, whose name as the ed
itor d the Richmond Enquirer is familiar to us
all, Mar. Jefferson wrote, under date of Decem-
Der 8, 1920, as follows:
Fhe Judiciary of the United States is the
subtle corps of sappers and miners, constantly
working under ground to undermine the found
ationy OF our confederated fabric They are
copstruing our Constitution from a co-ordina.
ton Of general and special Government, to a
general and supreme one alone"
should weary you if were to quote 1.-THE
OF what Mr.. Jefferson has left us on this subject
Wha. have presented will suffice to show Won
that he entertained deep-seated jealousy of
Federal encroachments upon the rights of the
Ststes, and that he utterly repudiated the mod.
ern doctrine of the party which claims to be
Democratic, that the Supreme Court is the final
arbit@r of constitutional questions.
] aow present the views of the modern De-
mocHacy touching these questions of constitu-
topa1 power and the authority of the Supreme
Cour. | know that the President has fallen
into aisrepute with large sections of his party
but, inasmuch as the sentiments advanced in
ms inaugural, in his Silliman letter, and in his
hrst annual message, were universally applaud
ed, North and South, as the very perfection of
human wisdom nd o+o r