When the majority of the Justices were more liberal than those sitting today, conservatives complained about the overreaching of the courts and argued against judicial legislation. Now they are blaming Obama for far, far less.
The rivalry between the three branches of government is inevitable under our Constitution. I hope that Obama will be given the chance to appoint more justices. If we Democrats had a stronger majority in Congress, maybe . . . .
Jefferson's Letter to Roane Regarding the Supreme Court --
DEAR SIR,— . . .
I . . . go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that "the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived." If this opinion be sound, then indeed is our constitution a complete felo de se. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment. The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It 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. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.
A legislature had passed the sedition law. The federal courts had subjected certain individuals to its penalties of fine and imprisonment. On coming into office, I released these individuals by the power of pardon committed to executive discretion, which could never be more properly exercised than where citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the constitution, and therefore null. In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions. They cannot issue a mandamus to the President or legislature, or to any of their officers.* When the British treaty of------arrived, without any provision against the impressment of our seamen, I determined not to ratify it. The Senate thought I should ask their advice. I thought that would be a mockery of them, when I was predetermined against following it, should they advise its ratification. The constitution had made their advice necessary to confirm a treaty, but not to reject it. This has been blamed by some; but I have never doubted its soundness. In the cases of two persons, antenati, under exactly similar circumstances, the federal court had determined that one of them (Duane) was not a citizen; the House of Representatives nevertheless determined that the other (Smith, of South Carolina) was a citizen, and admitted him to his seat in their body. Duane was a republican, and Smith a federalist, and these decisions were made during the federal ascendancy.
These are examples of my position, that each of the three departments has equally the right to decide for itself what is its duty under the constitution, without any regard to what the others may have decided for themselves under a similar question. But you intimate a wish that my opinion should be known on this subject. No, dear Sir, I withdraw from all contest of opinion, and resign everything cheerfully to the generation now in place. They are wiser than we were, and their successors will be wiser than they, from the progressive advance of science. Tranquillity is the summum bonum of age. I wish, therefore, to offend no man’s opinion, nor to draw dis-quieting animadversions on my own. While duty required it, I met opposition with a firm and fearless step. But loving mankind in my individual relations with them, I pray to be permitted to depart in their peace; and like the superannuated soldier, "guadragenis stipendiis emeritis," to hang my arms on the post. I have unwisely, I fear, embarked in an enterprise of great public concern, but not to be accomplished within my term, without their liberal and prompt support. . . . .
http://teachingamericanhistory.org/library/index.asp?document=2192
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