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March 25, 2005

The inconsistent courts

“The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” — Thomas Jefferson to Abigail Adams, 1804.

“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. 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 [good justice is broad jurisdiction], 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.” — Thomas Jefferson to William C. Jarvis, 1820

Isn't it interesting that the concept of Separation of Church and State was derived for one line in a letter Thomas Jefferson wrote to a church, and subsequently made into law by courts that decided to use it to allow the government to control religious expression. Yet Jefferson's abundant writings on the limitations of the judiciary are totally ignored by those same courts.

Posted by Danny Carlton at March 25, 2005 08:35 AM

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