Or Why The SC and Its Apologists Should Take A Hike!

The executive department is accountable to the people, the judiciary is not. Its power must not be co-equal with the President, if we have to maintain the principle that sovereignty resides in the people. That, in gist is a Jeffersonian philosophy.

The spirit of republicanism is essentially this: every empowered bureaucrat should be within the immediate recall of the people. The jurists are not according to Jefferson. They retired at age 70, while other bureaucrats have to seek a regular mandate from the people through elections.

The independence of the judiciary sprouted in England where the King condescends on the magistrates. The ideals of justice and law dispensation must be free from outside pressure. (backdoor wrangling in our experience) America borrowed the concept of “independent judiciary” taking that experience from the British system of government. The idea that the executive department in America could mimic a royalty justifies the position that the judiciary must be independent from the King.

However, the spirit of republicanism (government of the people for the people and by the people)  prevailed in America. Early political thinkers, the leading light among them, T. Jefferson saw an independent judiciary not elected by the people a “solecism.” ( translation: a big mistake) So he argued that jurists must be elected by the people themselves so they can share in the sovereign function of government.  Or these  magistrates be appointed for a fix term of 4 -6 years.  This genius was shared by some States of America by having their Supreme Court justices and even inferior judges elected by the people. But that genius was hijacked by big business interests (banks and financial institutions) which saw a separate power chute as the judiciary that could protect business from the turmoil of political weather. Now you can appreciate the fact that Lucio Tan wins his tax cases in the SC and banks, instead of submitting to Central Bank measures to curtail their predatory practices have to go to the SC to avoid the regulations.

Jefferson’s genius did not go beyond state level, thus the members of the  federal judiciary remain appointed and independent of the nation.  Jefferson was the leading advocate of State’s rights against federal coercion.

If it was not adopted on federal level, it was not for reason that better political theorists came after him. It was because they could not comprehend the genius of Jefferson. The 3rd U.S. President has a granite memorial in Washington DC, like Abraham Lincoln. But in addition, a huge building housing the Library of Congress was named after him– as a testament to a man of letters; his political virtues and his commitment to democratic ideals. His being a vocal critique of the federal judiciary was not borne out of prejudice or hatred but of his abiding faith in the ideals that the sovereign power must always be with the people.

BTW, even President Barack Obama  rebuked the Federal Supreme Court in its ruling over campaign finance reform and displayed his annoyance over that ruling in his Sate of the Nation address too.   That position is only in conformity with the principle that the judiciary cannot impose its sanctimonious lecture on how to run the executive department  — an attitude that is far less indicative of “autocratic propensities” but more of a legitimate protest over judicial incursions of the executive terrain.

Here is again Thomas Jefferson:

“You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the constitution has given them the right to decide for the executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges believing the law constitutional, had a right to pass a sentence of fine or imprisonment, because that power was placed in their hands by the constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that each co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.” (Jefferson’s letter to John Adams).