Jefferson’s Letter to William Charles Jarvis Explains Separation of Powers

Mandeville, LA – The works of Thomas Jefferson contain thousands of useful nuggets on our Constitution and life under it as the Founders understood it. This letter Jefferson chides his friend William Charles Jarvis that his opinion on the supremacy of the Judiciary is “dangerous” and will result in an “oligarchy”. This has come to pass and it is truly a tragedy that Jarvis is more prophet than Jefferson is temperer.

“Monticello, September 28, 1820
I thank you, Sir, for the copy of your Republican which you have been so kind as to send me, and I should have acknowledged it sooner but that I am just returned home after a long absence. I have not yet had time to read it seriously, but in looking over it cursorily I see much in it to approve, and shall be glad if it shall lead our youth to the practice of thinking on such subjects and for themselves. That it will have this tendency may be expected, and for that reason I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthened by that of many others. You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions; 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.

On page 84 Jefferson is referring to this passage which seems rather banal considering today’s judicial tyranny. This helps drive home the point that the things we take as perfunctory would be viewed by our our fore parents as unacceptable tyranny.

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“In drawing this conclusion, we are naturally led to contemplate the importance of the Judicial authority, established by our constitutions, in its operation as a check upon any unconstitutional exercise of power, by any other branches of the government.
Fundamental laws would be useless, and worse than useless, if they might be disregarded or neglected, in the administration of the government: it is therefore within the authority, delegated to our judicial tribunals, to refuse to give effect to any unconstitutional laws or ordinances. The judicial authority, thus constituted, operates continually, to keep the administration of government true to its fundamental laws, and original principles.” – William Charles Jarvis- The Republican

Jefferson then describes what HE believes to be the proper role of the judiciary, the legislature and the executive questions that perplex most “constitutional scholars” these days but seem positively academic to Jefferson.

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,” [To expand the jurisdiction of the judge is good] 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.

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 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. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Pardon me, Sir, for this difference of opinion. [/private]

My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence on each other it may last long, but not so if either can assume the authorities of the other. I ask your candid re-consideration of this subject, and am sufficiently sure you will form a candid conclusion. Accept the assurance of my great respect.”

TheKingDude

Host of the Mike Church Show on The Veritas Radio Network's CRUSADE Channel & Founder of the Veritas Radio Network. Formerly, of Sirius/XM's Patriot channel 125. The show began in March of 2003 exclusively on Sirius and remains "the longest running radio talk show in satellite radio history".

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