I continue with my reading in the letters of Thomas Jefferson and of Abraham Lincoln. My admiration for the constitutional acuity of Jefferson never diminishes as I read, but only grows.
Jefferson, writing to Judge Spencer Roane, puts the character of an issue in his day in sharp relief. There, speaking of the Supreme Court's decisions by John Marshall, he characterizes the decisions as utterly beyond constitutional bounds.
In fact, he declares that, if the Constitution authorized the Supreme Court to be the sole and final voice of interpretation of the Constitution, then it was a "felo de se," which means, "a felonious act of suicide."
Jefferson's view, stated in his letter to Judge Roane, was that each branch of the government was bound to its own construction of its powers and duties under the Constitution and that no power existed over the actions of another branch, except such as were expressly granted.
Thus, impeachment is clearly a mechanism by which the executive and judicial officers may be restrained from unlawful and unconstitutional acts. But there was no power granted to the President, for example, simply to suspend or dissolve Congress, or the courts.
So an Order of the President dissolving Congress and calling for new elections might impress the President, but it would not compel Congress to end its deliberations.
Jefferson, informed by eight years as President and a decade following of contemplation, knew precisely how to illuminate this political philosophy of his: he explained the underlying dispute in one of the most oft-discussed cases of constitutional law, Marbury v. Madison.
John Adams signed and sealed a set of commissions for justices of the peace. Those commissions were laying on a table in the office of the Secretary of State when Jefferson took office. He forbade their transmission to those named, including Mr. Marbury.
Jefferson remonstrated against the decision in Marbury -- even though it dismissed Mr. Marbury's claim -- because the Court, when it should have said, "Case dismissed," used the occasion to set out its view on its supremacy in constitutional construction.
Jefferson stated his view that, in the hands of judges such as Marshall, the Constitution is made into a thing of wax, to be bent and twisted to the preferences of judges
That might sound familiar to some of you.
There is an ongoing battle over the character of the Constitution as a changeable thing. Judges, including William Brennan, Harry Blackmun, Thurgood Marshall, Ruth Ginsburg, all have viewed the Constitution as a living thing, capable of developing through judicial construction.
Like Antonin Scalia and Clarence Thomas, Jefferson, as President and as emeritus to that office, took the Constitution as a thing of fixed meaning, not capable of expansion merely by preferential interpretations given to the document by a judicial majority.
Yet, in his day, Jefferson saw this propensity to view the Constitution as a thing capable of being transformed in the hands of unchecked judges. That was the central concern of his letter to Judge Roane. His concern then. Our danger now.
Yes, our danger now.
Today, courts across the nation are proceeding apace, in the name of applying the Constitution, to strike down State laws and State constitutional amendments on topics that have long been viewed as the exclusive province of State law and regulation.
One can search in vain for the We'll Do As We Damn Well Please Clause within Article III of the Constitution. It is not there.
These powers of the Courts -- to exercise supervisory control over State laws, to the exclusive and final construction of the Constitution, and to do as they damn well please -- are the product of two hundred years of deformation of the Constitution.
Some may celebrate recent decisions by the courts, regarding such matters as marriage equality, or the rights of undocumented aliens, or the like.
As ever, I just note for your consideration what Jefferson warned in his letter to Judge Roane, that you gain your victories in these circumstances, not by popular sovereignty, which is the truest and best bulwark of liberty, but by a softly tyrannical oligarchy.
Though that oligarchy patronizes your preference today, it can be turned on a wind, just like a ship.
If you would not lose those liberties that your prize, you should not applaud the abuse of them in the name of liberty.
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