But to extend the control of the judiciary, through their decisions "in cases in law and equity," over the action of the other departments in the discharge of the duties assigned to them, for the extent and gravity of which we have only to look to the Constitution, and which, for the most part, steer entirely clear of private and separate interests, would be a measure of a very different character. It was upon these public functionaries that the entire political power of the Federal Government was intended to be conferred, and to the limited tenure by which they held their offices and to their direct responsibility to the people that the latter have always looked for the means to control their action. It is upon this swift and certain responsibility they have hitherto relied for their ability to bring the government back, without great delay, to the republican track designed for it by the Constitution, whenever it might be made to depart from it through, the infidelity of their representatives. Truly says Mr. Jefferson, in one of his letters last referred to, "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."
Nor have the people been slow to exert their powers to reform abuses which they honestly, whether erroneously or not, believed to exist, by displacing representatives whom they considered unfaithful, whenever the occasion has seemed to them of sufficient magnitude to call for its exercise. The commencement of the nineteenth century was made forever memorable in our political annals by a display of this power, and it was again exerted in 1828, in 1840, in 1844, and in 1852. The result of the election of 1848 was altogether occasioned by divisions in the Democratic party, and I feel that I venture nothing in attributing that of 1840 mainly to a mistake in the public mind, which it has since magnanimously acknowledged, and with that atonement I am more than satisfied.
But if the incumbents of the legislative and executive departments have no right to decide for themselves constitutional questions that arise in the performance of their official functions; if it be indeed true that the National Legislature, in discharging the important duties of laying and collecting taxes, duties, imposts, and excises; in borrowing money on the credit of the United States; in regulating commerce with foreign nations, and among the several States, and with the Indian tribes; in establishing uniform rules of naturalization and on the subject of bankruptcies; in coining money and regulating the value thereof, and of foreign coins, and fixing the standard of weights and measures; in providing punishment for counterfeiting the securities and current coin of the United States; in establishing post-offices and post-roads; in promoting science and useful arts; in constituting tribunals inferior to the Supreme Court; in defining and punishing piracies and felonies committed on the high seas and offences against the law of nations; in declaring war; granting letters of marque and reprisal, and making rules concerning captures on land and water; in raising and supporting armies; in providing and maintaining a navy; in making rules for the government and regulation of the land and naval forces; in providing for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion; in providing for organizing armies and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States; in the exercise of exclusive jurisdiction in all cases whatsoever in the ten-mile-square and in the forts of the United States; and in making necessary and proper laws for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof: and that the President, in assuming command of the army or navy of the United States and of the militia of the several States, when called into their service; in making treaties by and with the advice of the Senate; and in the appointment of all the officers of the United States, with limited and specific exceptions, and in filling up all vacancies that may arise during the recess of the Senate; in receiving ambassadors and other public ministers; and in taking care that the laws be faithfully executed,—are both bound to look to the decisions, of the Supreme Court, "in cases of law and equity" that are brought before them, for the character and extent of their powers under the Constitution, and to be governed by them, what becomes of the distinguishing feature of Republican Government—the responsibility of the representative to the people for the faithful performance of his duties? A people so intelligent, and withal so just as ours, would surely never think of dismissing one branch of their public servants for acts in respect to which they had placed them under the absolute guidance of another branch. To single out one department from the rest by placing its incumbent under a special oath to protect and preserve the Constitution, and then to make it his duty to obey the directions of another in that very function, absolutely and unconditionally, would, I cannot but think, be going quite as far in that direction as the character of any people for justice and wisdom could bear.
To whom are the members of the Federal Judiciary responsible for the truthfulness of their constitutional expositions and for the wisdom of the steps they take to make them effectual? To no human being. They can only be displaced by impeachment and criminal conviction. That mere error of judgment, without positive proof of corruption, can never be made the basis of such a proceeding, is known to all. Is it not, then, most apparent that to place the fidelity to the Federal Constitution of the representatives of the people and of the States and of most of the effective officers employed in the conduct of public affairs, save only those that are of a judicial character, under the supervision of that department, is nothing less than to divest the Government of its republican features and to substitute in its place the control of an irresponsible judicial oligarchy—to make the Constitution a lie, and turn to mockery its most formal provisions, designed to secure to the people a control over the action of the Government under its authority? Is it not remarkable that a doctrine, so clearly anti-republican in its character and tendencies, should have been so long kept on foot under a system so truly republican as ours, and may we not trace its origin to the same inexhaustible fountain from whence have proceeded the most tenacious of our party divisions—an inextinguishable distrust, on the part of numerous and powerful classes, of the capacities and dispositions of the great body of their fellow-citizens?
The want of a proper respect for the people, as has been often said, was Hamilton's great misfortune. If he could have felt otherwise, he would have been a Republican. This distrust of the capacity and disposition of the masses, which had been the bane of his life, retained its hold upon his strong mind and ardent feelings when he bequeathed it to his political disciples, and it has been the shibboleth of their tribe ever since. In a large degree wealthy and proud of their social position, their fear of the popular will, and desire to escape from popular control, instead of being lessened, is increased by the advance of the people in education and knowledge. Under no authority do they feel their interests to be safer than under that which is subject to the judicial power, and in no way could their policy be more effectually promoted than by taking power from those departments of the Government over which the people have full control, and accumulating it in that over which they may fairly be said to have none.
FOOTNOTES:
[36] The correspondence, including the letters of President Jackson, has received the same direction with the other MSS. of the Author. See [introduction] to this volume. Eds.