8229. SUPREME COURT, Questions of constitutionality.—[continued].
If the Legislature fails
to pass laws for a census, for paying the
Judges and other officers of government, for
establishing a militia, for naturalization as
prescribed by the Constitution, or if they fail
to meet in Congress, the Judges cannot issue
their mandamus to them; if the President
fails to supply the place of a judge, to appoint
other civil or military officers, to issue
requisite commissions, the Judges cannot force
him. They can issue their mandamus or distringas
to no executive or legislative officer
to enforce the fulfilment of their official
duties any more than the President or Legislature
may issue orders to the Judges or
their officers. Betrayed by English example,
and unaware, as it should seem, of the control
of our Constitution in this particular, they
have at times overstepped their limit by undertaking
to command executive officers in
the discharge of their executive duties; but
the Constitution, in keeping the three departments
distinct and independent, restrains the
authority of the Judges to judiciary organs,
as it does the Executive and Legislative to
executive and legislative organs. The Judges
certainly have more frequent occasion to act
on constitutional questions, because the laws
of meum and tuum and of criminal action,
forming the great mass of the system of law,
constitute their particular department. When
the legislative or executive functionaries act
unconstitutionally, they are responsible to the
people in their elective capacity. The exemption
of the Judges from that is quite
dangerous enough.—
To William C. Jarvis. Washington ed. vii, 178.
Ford ed., x, 160.
(M.
1820)
