September 6, 1819 – Thomas Jefferson Calls the Constitution a Felo de Se

Thomas Jefferson was greatly opposed to a strong central government, believing that most power should reside with the states.  [At least, that was his belief until he was the President, and then his tune changed.]

He constantly harangued his friends and followers-on to promote his views on this matter, especially in regard to his attempts to emasculate the Supreme Court.

In Hite v. Fairfax, (4 Call 42, 1786), the U.S. Supreme Court overruled a decision of the Virginia Court of Appeals in an ejectment case that, inter alia, involved the interpretation of a treaty with Great Britain.  But egged on by Thomas Jefferson and echoing Jefferson’s words in his Kentucky Resolution, Judge Spencer Roane rejected the order of the Supreme Court declaring that “the appellate power of the Supreme Court does not extend to this Court.”

Spencer Roane

Spencer Roane

The losing party then appealed that ruling, and the case was once again before the Supreme Court, this time under the name Martin v. Hunter’s Lessee (14 U.S. 304, 1816).  

Once again, the Supreme Court ruled that it had power (if in a proper case) to overrule the highest court of a state. On March 20, 1816, Justice Story asserted in his decision for the Court:

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the people of the United States.” There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. 

… it is plain that the framers of the Constitution did contemplate that cases within the judicial cognizance of the United States not only might, but would, arise in the State courts in the exercise of their ordinary jurisdiction. With this view, the sixth article declares, that

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

It is obvious that this obligation is imperative upon the State judges in their official, and not merely in their private, capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the Constitution, laws and treaties of the United States — “the supreme law of the land.

Nor can such a right be deemed to impair the independence of State judges. . . . In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the Constitution, and if they should unintentionally transcend their authority or misconstrue the Constitution, there is no more reason for giving their judgments an absolute and irresistible force than for giving it to the acts of the other coordinate departments of State sovereignty.”

Daguerreotype of Joseph Story, 1844

Daguerreotype of Joseph Story, 1844

It is important to note that the Court was not claiming the power to rule on all state court decisions. Its decision was based on subject matter jurisdiction. In Justice Story’s words:

It is the case, then, and not the court, that gives the jurisdiction….If State tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the Constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the Constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive, and this not only when the casus foederis should arise directly, but when it should arise incidentally in cases pending in State courts. This construction would abridge the jurisdiction of such Court far more than has been ever contemplated in any act of Congress.


It has been argued that such an appellate jurisdiction over State courts is inconsistent with the genius of our Governments, and the spirit of the Constitution. That the latter was never designed to act upon State sovereignties, but only upon the people, and that, if the power exists, it will materially impair the sovereignty of the States, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent.”


Thus, in Martin v. Hunter’s Lessee, the Supreme Court affirmed its authority to review state court decisions dealing with federal law, and to overturn state court decisions it adjudged in violation of the Constitution. 

Thomas Jefferson was incensed.  He later wrote to Judge Roane:

In denying the right they usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. [Felo de Se – (Law) One who deliberately puts an end to his own existence]

…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.  …  Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law …”


Thomas Jefferson

Thomas Jefferson

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