He really had faith in the
English principle of an absolute parliament, restrained, if needful, by
a conservative chamber, like the House of Lords, but not in the total
suspension of sovereignty subject to judicial illumination. Consequently
he fell back on platitudes about judicial high-mindedness, and how
judges could be trusted not to allow political influences to weigh with
them when deciding political questions. Pushed to its logical end,
concluded he, the Jeffersonian argument would prove that there should be
no judges distinct from legislatures.[8]
Now, at length, exclaimed the Jeffersonian in triumph, you admit our
thesis. You propose to clothe judges with the highest legislative
functions, since you give them an absolute negative on legislation, and
yet you decline to impose on them the responsibility to a constituency,
which constrains other legislators. Clearly you thus make them
autocratic, and in the worst sense, for you permit small bodies of
irresponsible men under pretence of dispensing justice, but really in a
spirit of hypocrisy, to annul the will of the majority of the people,
even though the right of the people to exercise their will, in the
matters at issue, be clearly granted them in the Constitution.
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