University of Virginia Library

4182. JUDICIARY (Federal), Curbing.

—You will have a * * * difficult task in
curbing the Judiciary in their enterprises on
the Constitution. I doubt whether the erection
of the Senate into an appellate court on
constitutional questions would be deemed an
unexceptionable reliance; because it would enable
the Judiciary, with the representatives in
Senate of one-third only of our citizens, and
that in a single house, to make by construction what they should please of the Constitution.
and thus bind in a double knot the other two-thirds;
for I believe that one-third of our
citizens choose a majority of the Senate, and
these, too, of the smaller States whose interests
lead to lessen State influence, and
strengthen that of the General Government.
A better remedy I think, and indeed the best
I can devise would be to give future commissions
to judges for six years (the senatorial
term) with a reappointability by the
President with the approbation of both houses. That of the House of Representatives
imports a majority of citizens, that of
the Senate a majority of States, and that
of both a majority of the three sovereign departments
of the existing government, to wit,
of its Executive and Legislative branches. If
this would not be independence enough, I
know not what would be such, short of the
total irresponsibility under which we are acting
and sinning now. The independence of
the judges in England on the King alone is
good; but even there they are not independent
on the Parliament, being removable on
the joint address of both houses, by a vote
of a majority of each, but we require a
majority of one house and two-thirds of the
other, a concurrence which, in practice, has
been and ever will be found impossible; for
the judiciary perversions of the Constitution
will forever be protected under the pretext of
errors of judgment, which by principle are
exempt from punishment. Impeachment,
therefore, is a bugbear which they fear not
at all. But they would be under some awe of
the canvass of their conduct which would be
open to both houses regularly every sixth
year. It is a misnomer to call a government
republican, in which a branch of the supreme
power is independent of the nation. By this
change of tenure a remedy would be held up
to the States, which, although very distant,
would probably keep them quiet. In aid of
this a more immediate effect would be produced
by a joint protestation of both houses
of Congress, that the doctrines of the judges
in the case of Cohens, adjudging a State amenable
to their tribunal, and that Congress can
authorize a corporation of the District of
Columbia to pass any act which shall have
the force of law within a State, are contrary
to the provisions of the Constitution of the
United States. This would be effectual; as
with such an avowal of Congress, no State
would permit such a sentence to be carried
into execution within its limits. If, by the
distribution of the sovereign powers among
three branches, they were intended to be
checks on one another, the present case calls
loudly for the exercise of that duty, and such
a counter declaration, while proper in form,

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