The Supreme Problem

It’s easy to focus all our attention and ire on Congress and the President.  They are highly visible. We see these “representatives” interviewed regularly on TV and radio and print.  What day goes by when we don’t see an image of the President?  The Supreme Court however, our 3rd branch of government, gets very little attention.  This is a grave mistake.  I cannot over-state this fact.  The Supreme Court, as well as its lower District Courts, have quietly destroyed our Constitution.  Thomas Jefferson feared the Supreme Court more than he feared Congress and the Presidency.  He feared this 3rd branch of government would be the one to destroy America’s founding principles.  And he was right.

Thomas Jefferson could not attend the hot summer debates in 1787 in Philadelphia when our other Founders wrote our beloved Constitution.  The Constitution created our three branches of government, uniquely checking and balancing one branch of government against the other in order to limit the power of any one branch. Jefferson couldn’t be at the writing of our Constitution because he was in Europe at the time, serving as our ambassador to France.  The final draft of the Constitution was completed and signed on Sept. 17th 1787 and ratified by the states the following year (the Bill of Rights was added to the Constitution in Dec. 1791).

Jefferson did not return from France until September 1789, fully six months after the brand new Constitution went into effect.  Jefferson didn’t even know that President Washington, our first Administration, had appointed him Secretary of State until he stepped off the ship from France.

So, Jefferson wasn’t there for the all-important debates of 1787 in Philly.  Talk about missing the party!  If I was alive in 1787 there is nowhere in the entire world I would want to be but at the Constitutional Convention debates that summer.  I’m guessing Jefferson was pissed he missed it.

When Jefferson read this new Constitution he immediately saw a flaw.  In his opinion, his co-Founders had not written into the Constitution an adequate “check” of power limiting the Supreme Court.  Jefferson warned and railed against this flaw until his death in 1826.

The flaw Jefferson saw was an assumption made by the other Founders.  Though Jefferson was not alone in his opinion of the matter; he was however in the minority.  The majority of Founders who drafted the Constitution assumed the new Supreme Court would maintain Common Law tradition, as courts in England had done for hundreds of years.   In other words, our Founders assumed the new Supreme Court would stick to our nation’s founding principles.  After all, there were thousands of papers and letters and documents describing the Founders’ intentions for how to carry out the Constitution.  This is where Jefferson saw the flaw.

Jefferson argued—all too late—that the Supreme Court would naturally deviate from the Founders’ intentions, and that the Constitution did not provide an adequate “check” on the Court’s deviation.  Jefferson knew human nature would malign the Supreme Court judges.  Esteemed judges are not immune from sin and folly and personal agendas.

As written, the only Constitutional “checks” on the Supreme Court are as follows:

  • New judges are nominated by the President.
  • Nominations are approved by the Senate.
  • A judge can ONLY be removed from office if he or she commits a crime.

To Jefferson and others this was not enough of a check on the Supreme Court.  Jefferson argued that the House of Representatives might have a role in nullifying Supreme Court decisions, or other such constitutional procedures to limit the Court’s power.

Jefferson warned in a letter in 1821:

“It has long, however, been my opinion, and I have never shrunk from its expression…that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible[i.e., not responsive or beholden to the people’s will] body working like gravity by night and by day gaining a little today and a little tomorrow, and advancing it noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all the consolidated into one.  To this I am opposed; because, when all the government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”  (The Writings of Thomas Jefferson, 15:330-32.  Edited by Albert Ellery Bergh. 20 vols. Washington:  Thomas Jefferson Memorial Assoc. 1907.)

History now proves Jefferson and like-minded Founders, though a minority, were correct.  Utterly correct.

Let us always include with respect and staid consideration the voice of the minority, lest an impatient majority sow the seeds of our own destruction.


(Source and recommended reading, The Making of America: The Substance and Meaning of the Constitution, 1985 by W. Cleon Skousen.  Pub. National Center for Constitutional Studies.)



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