In 1807, President Thomas Jefferson was “commanded” by Supreme Court Justice–and his cousin–John Marshall to appear at the trial of Aaron Burr, who was charged with treason (Marshall was the presiding judge at the trial). Jefferson said, thanks but no thanks, and replied to Marshall thusly, essentially saying “make me.”
As to our personal attendance at Richmond, I am persuaded the court is sensible that paramount duties to the nation at large control the obligation of compliance with its summons in this case, as it would should we receive a similar one to attend the trials of Blennerhassett and others in the Mississippi territory, those instituted at St Louis and other places on the western waters, or at any place other than the seat of government. To comply with such calls would leave the nation without an executive branch, whose agency nevertheless is understood to be so constantly necessary that it is the sole branch which the constitution requires to be always in function. It could not, then, intend that it should be withdrawn from its station by any co-ordinate authority.
Jefferson’s Letters
Note the use of the words “co-ordinate authority,” which is the polite Jeffersonian way of saying, “you’re not the boss of me.” Jefferson held that, in line with the Constitution, that all branches of government are co-equal, and that no un-elected official, or any other kind, was going to be allowed to issue kingly orders down from on high. Jefferson thought that it should take two out of the three branches of government, to over-rule the third. For what it’s worth, after Jefferson refused to be Marshall’s errand boy, Marshall found Burr to be not guilty.
After his retirement, Jefferson was not so polite about judicial kings-in-the making. From one of his private letters, he explained:
At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office.
Jefferson’s Letters
No one can say we weren’t warned.
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