Thomas Jefferson’s Greatest Fear: The Federal Judiciary and the Death of Liberty

By: Michael Boldin

 

“The great object of my fear is the federal judiciary.”

That’s Thomas Jefferson – sounding the alarm over what he saw as the greatest threat to the Constitution and your liberty.

He gave us four main warnings:

• Consolidation is death to freedom.
• Judges can be just as corrupt and power-hungry as any politician.
• The courts are the engine of consolidation.
• And the final disaster – judicial supremacy turning the “land of the free” into an oligarchy ruled by black robes.

THE FOUNDATION OF TYRANNY

Thomas Jefferson understood that the root of every tyranny is the same – centralized power destroys liberty. Guaranteed.

That’s exactly how he put it in a letter to Joseph C. Cabell:

“What has destroyed liberty and the rights of man in every government which has ever existed under the sun? the generalising & concentrating all cares and powers into one body”

The bigger the country, the worse it gets. Consolidated power over a large territory will always “invite the public agents to corruption, plunder & waste.”

That’s the iron law: centralize power, and you get oppression. Every. Single. Time. And that’s exactly what he told James Madison:

“I own I am not a friend to a very energetic government. It is always oppressive.”

JUDGES ARE JUST PEOPLE

And the courts? They won’t save you. They’re part of the system.

Judges aren’t a special breed. They’re just like politicians – people chasing power, or staying loyal to a party. Or both.

“Our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps.”

This is really just based on an understanding of human nature. Many of the thinkers Jefferson read and learned from gave the same kind of warning about power. Like Thomas Gordon, writing in Cato’s Letters No. 47:

“Men, who in private life were just, modest, and good, have been observed, upon their elevation into high places, to have left all their virtuous and beneficent qualities behind them, and to have acted afterwards upon a new spirit, of arrogance, injustice, and oppression.”

Jefferson spelled it out – this is why jury nullification is so essential.

“it is better to leave a cause to the decision of cross and pile, than to that of a judge biassed to one side; and that the opinion of 12 honest jurymen gives still a better hope of right, than cross and pile does. It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact.”

Jefferson was clear: Jury nullification doesn’t just check the power of judges – it checks ALL government power. As he put it in a letter to Thomas Paine, it’s one of the most important tools we have:

“The only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution”

Back to the judges. In a letter to William Charles Jarvis, Jefferson pointed to an old Latin legal maxim that translates roughly as “a good judge doesn’t just interpret the law – he enlarges his jurisdiction to do justice.”

“Their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul.”

That’s why Jefferson, and many of the writers who influenced his thinking, warned that anyone with power has to be given clear and strict limits – like Thomas Gordon, writing in Cato’s Letters No. 33.

“Considering what sort of a creature man is, it is scarce possible to put him under too many restraints, when he is possessed of great power: He may possibly use it well; but they act most prudently, who, supposing that he would use it ill, inclose him within certain bounds, and make it terrible to him to exceed them.”

Jefferson understood that this had to apply to judges as well. They couldn’t have the sole, exclusive, and final say on the meaning of the constitution.

“The constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots. it has more wisely made all the departmen[ts] co-equal and co-sovereign within themselves.”

THE ENGINE OF CONSOLIDATION

Jefferson’s biggest warning wasn’t just that judges were ordinary people – and potentially corrupt. He was watching things play out in real time – with people like John Marshall and Joseph Story.

“Our government is now taking so steady a course, as to shew by what road it will pass to destruction, to wit, by consolidation first, and then corruption, it’s necessary consequence.”

He followed with an observation – and a prediction:

“The engine of consolidation will be the Federal Judiciary; the two other branches the corrupting and corrupted instruments”

That’s how they’ve always done it. Twist the Constitution – one opinion at a time – until power is consolidated and nothing is out of reach for the federal judiciary.

“They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem.’”

What makes it even more dangerous is that it’s often not bold or overt overreach. It’s usually more like a covert war – constant, corrosive, and sometimes silent.

“The Judiciary of the US. is the subtle corps of sappers & miners constantly working under ground to undermine the foundations of our confederated fabric.”

Jefferson considered this the single greatest threat to the entire republic.

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming instrumentality of the Supreme court.”

THE FINAL DISASTER: JUDICIAL SUPREMACY

Jefferson’s warning was clear: government can’t be trusted to police itself or limit its own power. He made this general principle clear in the Kentucky Resolutions of 1798.

“The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made it’s discretion, & not the constitution, the measure of it’s powers”

But the real disaster comes when the people buy into the lie – when they put the Supreme Court on a pedestal, above the other branches, above the states, above themselves. That’s when the quiet coup is complete.

“You seem 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.”

Letting unelected, unaccountable, politically connected lawyers tell us what the constitution means – until they change their mind – means we don’t have a Constitution – a fixed set of rules for government.

“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.”

Putting it all together, this is why – out of all threats to the Constitution and liberty – Jefferson called the federal judiciary his greatest fear.

“The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing insidiously the special governments into the jaws of that which feeds them”

Thomas Jefferson didn’t trust judges or the judicial branch. And neither should you.