Article 3, Section 2, Clause 1

Document 77

James Madison to Thomas Jefferson

27 June 1823Writings 9:140--43

But after surmounting the difficulty in tracing the boundary between the General & State Govts. the problem remains for maintaining it in practice; particularly in cases of Judicial cognizance. To refer every point of disagreement to the people in Conventions would be a process too tardy, too troublesome, & too expensive; besides its tendency to lessen a salutary veneration for an instrument so often calling for such explanatory interpositions. A paramount or even a definitive Authority in the individual States, would soon make the Constitution & laws different in different States, and thus destroy that equality & uniformity of rights & duties which form the essence of the Compact; to say nothing of the opportunity given to the States individually of involving by their decisions the whole Union in foreign Contests. To leave conflicting decisions to be settled between the Judicial parties could not promise a happy result. The end must be a trial of strength between the Posse headed by the Marshal and the Posse headed by the Sheriff. Nor would the issue be safe if left to a compromise between the two Govts. the case of a disagreement between different Govts. being essentially different from a disagreement between branches of the same Govts. In the latter case neither party being able to consummate its will without the concurrence of the other, there is a necessity on both to consult and to accommodate. Not so, with different Govts. each possessing every branch of power necessary to carry its purpose into compleat effect. It here becomes a question between Independent Nations, with no other dernier resort than physical force. Negotiation might indeed in some instances avoid this extremity; but how often would it happen, among so many States, that an unaccommodating spirit in some would render that resource unavailing.

We arrive at the agitated question whether the Judicial Authority of the U.S. be the constitutional resort for determining the line between the federal & State jurisdictions. Believing as I do that the General Convention regarded a provision within the Constitution for deciding in a peaceable & regular mode all cases arising in the course of its operation, as essential to an adequate System of Govt. that it intended the Authority vested in the Judicial Department as a final resort in relation to the States, for cases resulting to it in the exercise of its functions, (the concurrence of the Senate chosen by the State Legislatures, in appointing the Judges, and the oaths & official tenures of these, with the surveillance of public Opinion, being relied on as guarantying their impartiality); and that this intention is expressed by the articles declaring that the federal Constitution & laws shall be the supreme law of the land, and that the Judicial Power of the U. S. shall extend to all cases arising under them: Believing moreover that this was the prevailing view of the subject when the Constitution was adopted & put into execution; that it has so continued thro' the long period which has elapsed; and that even at this time an appeal to a national decision would prove that no general change has taken place: thus believing I have never yielded my original opinion indicated in the "Federalist" No. 39 to the ingenious reasonings of Col: Taylor agst. this construction of the Constitution.

I am not unaware that the Judiciary career has not corresponded with what was anticipated. At one period the Judges perverted the Bench of Justice into a rostrum for partizan harangues. And latterly the Court, by some of its decisions, still more by extrajudicial reasonings & dicta, has manifested a propensity to enlarge the general authority in derogation of the local, and to amplify its own jurisdiction, which has justly incurred the public censure. But the abuse of a trust does not disprove its existence. And if no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself, to continual appeals from its controverted decisions to that Ultimate Arbiter.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 77
The University of Chicago Press

The Writings of James Madison. Edited by Gaillard Hunt. 9 vols. New York: G. P. Putnam's Sons, 1900--1910. See also: Federalist

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