The Writings of Thomas Jefferson, Vol. 7 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and PrivateJefferson, Thomas
Philosophy
The Writings of Thomas Jefferson, Vol. 7 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private
Jefferson, Thomas
United States -- Politics and government -- 1775-1783; United States -- Politics and government -- 1783-1865
You request me confidentially, to examine the question, whether the
Supreme Court has advanced beyond its constitutional limits, and
trespassed on those of the State authorities? I do not undertake it, my
dear Sir, because I am unable. Age and the wane of mind consequent on
it, have disqualified me from investigations so severe, and researches
so laborious. And it is the less necessary in this case, as having been
already done by others with a logic and learning to which I could add
nothing. On the decision of the case of Cohens vs. The State of Virginia,
in the Supreme Court of the United States, in March, 1821, Judge Roane,
under the signature of Algernon Sidney, wrote for the Enquirer a series
of papers on the law of that case. I considered these papers maturely as
they came out, and confess that they appeared to me to pulverize every
word which had been delivered by Judge Marshall, of the extra-judicial
part of his opinion; and all was extra-judicial, except the decision
that the act of Congress had not purported to give to the corporation
of Washington the authority claimed by their lottery law, of controlling
the laws of the States within the States themselves. But unable to claim
that case, he could not let it go entirely, but went on gratuitously to
prove, that notwithstanding the eleventh amendment of the constitution,
a State _could_ be brought as a defendant, to the bar of his court; and
again, that Congress might authorize a corporation of its territory to
exercise legislation within a State, and paramount to the laws of that
State. I cite the sum and result only of his doctrines, according to
the impression made on my mind at the time, and still remaining. If not
strictly accurate in circumstance, it is so in substance. This doctrine
was so completely refuted by Roane, that if he can be answered, I
surrender human reason as a vain and useless faculty, given to bewilder,
and not to guide us. And I mention this particular case as one only of
several, because it gave occasion to that thorough examination of the
constitutional limits between the General and State jurisdictions, which
you have asked for. There were two other writers in the same paper, under
the signatures of Fletcher of Saltoun, and Somers, who, in a few essays,
presented some very luminous and striking views of the question. And
there was a particular paper which recapitulated all the cases in which
it was thought the federal court had usurped on the State jurisdictions.
These essays will be found in the Enquirers of 1821, from May the 10th
to July the 13th. It is not in my present power to send them to you,
but if Ritchie can furnish them, I will procure and forward them. If
they had been read in the other States, as they were here, I think they
would have left, there as here, no dissentients from their doctrine. The
subject was taken up by our legislature of 1821-'22, and two draughts of
remonstrances were prepared and discussed. As well as I remember, there
Public-domain text, read in full here on John Shaqi.
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