Monday, April 21, 2008

Selecting Supreme Judges

My wife and I have been watching John Adams on HBO and I am impressed. Thomas Jefferson is probably the most admired man of all Founding Fathers because he wrote the Delcaration of Independence. When Thomas Jefferson wrote the Declaration of Independence in 1776, one of the reasons he gave for the need to declare independence from Great Britain was that King George III "had made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries."

The U.S. Constitution styles itself the "supreme law of the land". Courts have interpreted this phrase to mean that when laws (including state constitutions) that have been passed by state legislatures, or by the (national) Congress, are found to conflict with the federal Constitution, these laws are null and have no effect.

"My construction of the Constitution 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." —Thomas Jefferson to Spencer Roane, 1819. ME 15:214

Should we select judges base on preference or law? We have to keep in mind that justices do not represent official endorsements from any political parties because they must be indepedent and by the Constitution.

Justices deciding on issues based on preferences are those who will most shamelessly violate their own oath of office. Judicial activism basically means that judges are going beyond their powers and are making the law instead of interpreting the law based on the Constitution.

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." —Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"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. ME 11:51

"Where a constitution, like ours, wears a mixed aspect of monarchy and republicanism, its citizens will naturally divide into two classes of sentiment, according as their tone of body or mind, their habits, connections and callings, induce them to wish to strengthen either the monarchical or the republican features of the constitution. Some will consider it as an elective monarchy, which had better be made hereditary, and therefore endeavor to lead towards that all the forms and principles of its administration. Others will view it as an energetic republic, turning in all its points on the pivot of free and frequent elections." --Thomas Jefferson to James Sullivan, 1797. ME 9:377

"The Constitution to which we are all attached was meant to be republican, and we believe to be republican according to every candid interpretation. Yet we have seen it so interpreted and administered, as to be truly what the French have called, a monarchie masque." --Thomas Jefferson to Robert R. Livingston, 1800. ME 10:177

"Whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:110

"It was understood to be a rule of law that where the words of a statute admit of two constructions, the one just and the other unjust, the former is to be given them." --Thomas Jefferson to Isaac McPherson, 1813. ME 13:326

"When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:418

"Where a phrase is susceptible of two meanings, we ought certainly to adopt that which will bring upon us the fewest inconveniences." --Thomas Jefferson: Opinion on Apportionment Bill, 1792. ME 3:208

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