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| Judicial Review |
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Who should make the final
decision on interpreting the Constitution? The Supreme Court in the case of Marbury v.
Madison, which was decided during the first term of President Thomas Jefferson, determined
that IT should make the final decision for all branches of government, and that opinion
has remained in force ever since. Jefferson, however, strongly opposed Judicial Review
because he thought it violated the principle of separation of powers. He proposed that
each branch of government decide constitutional questions for itself, only being
responsible for their decisions to the voters.
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"The question
whether the judges are invested with exclusive authority to decide on the
constitutionality of a law has been heretofore a subject of consideration with me in the
exercise of official duties. Certainly there is not a word in the Constitution which has
given that power to them more than to the Executive or Legislative branches."
--Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
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"But the Chief Justice says,
'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is
either party? The ultimate arbiter is the people of the Union, assembled by their deputies
in convention, at the call of Congress or of two-thirds of the States. Let them decide to
which they mean to give an authority claimed by two of their organs. And it has been the
peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal,
where that of other nations is at once to force." --Thomas Jefferson to William
Johnson, 1823. ME 15:451
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"But, you may ask, if the
two departments [i.e., federal and state] should claim each the same subject of power,
where is the common umpire to decide ultimately between them? In cases of little
importance or urgency, the prudence of both parties will keep them aloof from the
questionable ground; but if it can neither be avoided nor compromised, a convention of the
States must be called to ascribe the doubtful power to that department which they may
think best." --Thomas Jefferson to John Cartwright, 1824. ME 16:47
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| Judicial Despotism |
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"The Constitution... meant
that its coordinate branches should be checks on each other. But the opinion which gives
to the judges the right to decide what laws are constitutional and what not, not only for
themselves in their own sphere of action but for the Legislature and Executive also in
their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to
Abigail Adams, 1804. ME 11:51
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"To consider the judges as
the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine
indeed, and one which would place us under the despotism of an oligarchy. 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 privilege of their corps. Their maxim is
boni judicis est ampliare
jurisdictionem
[good justice is broad jurisdiction], and their power the more
dangerous as they are in office for life and not responsible, as the other functionaries
are, to the elective control. The Constitution has erected no such single tribunal,
knowing that to whatever hands confided, with the corruptions of time and party, its
members would become despots. It has more wisely made all the departments co-equal and
co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820. ME
15:277
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"In denying the right [the
Supreme Court usurps] of exclusively explaining the Constitution, I go further than
[others] do, if I understand rightly [this] 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 [act of suicide]. For intending to establish three
departments, coordinate and independent, that they might check and balance one another, it
has given, according to this opinion, to one of them alone the right to prescribe rules
for the government of the others, and to that one, too, which is unelected by and
independent of the nation. For experience has already shown that the impeachment it has
provided is not even a scare-crow... 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." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212
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"This member of the
Government was at first considered as the most harmless and helpless of all its organs.
But it has proved that the power of declaring what the law is, ad libitum, by
sapping and mining slyly and without alarm the foundations of the Constitution, can do
what open force would not dare to attempt." --Thomas Jefferson to Edward Livingston,
1825. ME 16:114
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Each Department is Independent
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"My construction of the
Constitution is... that each department is truly independent of the others and has an
equal right to decide for itself what is the meaning of the Constitution in the cases
submitted to its action; and especially where it is to act ultimately and without
appeal." --Thomas Jefferson to Spencer Roane, 1819. ME 15:214
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"That branch which is to act
ultimately and without appeal on any law, is the rightful expositor of the validity of the
law, uncontrolled by the opinions of the other co-ordinate authorities." --Thomas
Jefferson to S. H. Torrance, 1815. ME 14:304
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"Nothing in the Constitution
has given [the judges] a right to decide for the Executive, more than to the Executive to
decide for them. Both magistrates are equally independent in the sphere of action assigned
to them." --Thomas Jefferson to Abigail Adams, 1804. ME ll:50
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"The federal judges...
cannot issue a mandamus to the President or legislature, or to any of their officers, the
Constitution controlling the common law in this particular." --Thomas Jefferson to
Spencer Roane, 1819. ME 15:214
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"Each of the three
departments has equally the right to decide for itself what is its duty under the
Constitution without regard to what the others may have decided for themselves under a
similar question." --Thomas Jefferson to Spencer Roane, 1819. ME 15:215
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"The judges certainly have
more frequent occasion to act on constitutional questions, because the laws of meum
and tuum and of criminal action, forming the great mass of the system of law,
constitute their particular department. When the legislative or executive functionaries
act unconstitutionally, they are responsible to the people in their elective capacity. The
exemption of the judges from that is quite dangerous enough... The people themselves,...
[with] their discretion [informed] by education, [are] the true corrective of abuses of
constitutional power." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:278
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"It may be said that
contradictory decisions may arise in such case and produce inconvenience. This is possible
and is a necessary failing in all human proceedings. Yet the prudence of the public
functionaries and authority of public opinion will generally produce accommodation. Such
an instance of difference occurred between the judges of England (in the time of Lord
Holt) and the House of Commons, but the prudence of those bodies prevented inconvenience
from it. So in the cases of Duane and of William Smith of South Carolina, whose characters
of citizenship stood precisely on the same ground: the judges in a question of meum
and tuum which came before them decided that Duane was not a citizen; and in a
question of membership, the House of Representatives under the same words of the same
provision adjudged William Smith to be a citizen. Yet no inconvenience has ensued from
these contradictory decisions. This is what I believe myself to be sound." --Thomas
Jefferson to W. H. Torrance, 1815. ME 14:304
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"The... proposed
[Constitution of Spain]... has one feature which I like much: that which provides that
when the three coordinate branches differ in their construction of the Constitution, the
opinion of two branches shall overrule the third. Our Constitution has not sufficiently
solved this difficulty." --Thomas Jefferson to Valentine de Foronda, 1809. ME 12:318
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"There is another opinion
entertained by some men of such judgment and information as to lessen my confidence in my
own. That is, that the Legislature alone is the exclusive expounder of the sense of the
Constitution in every part of it whatever. And they allege in its support that this branch
has authority to impeach and punish a member of either of the others acting contrary to
its declaration of the sense of the Constitution. It may, indeed, be answered that an act
may still be valid although the party is punished for it, right or wrong. However, this
opinion which ascribes exclusive exposition to the Legislature merits respect for its
safety, there being in the body of the nation a control over them which, if expressed by
rejection on the subsequent exercise of their elective franchise, enlists public opinion
against their exposition and encourages a judge or executive on a future occasion to
adhere to their former opinion. Between these two doctrines, every one has a right to
choose, and I know of no third meriting any respect." --Thomas Jefferson to W. H.
Torrance, 1815. ME 14:305
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"[How] to check these
unconstitutional invasions of... rights by the Federal judiciary? Not by impeachment in
the first instance, but by a strong protestation of both houses of Congress that such and
such doctrines advanced by the Supreme Court are contrary to the Constitution; and if
afterwards they relapse into the same heresies, impeach and set the whole adrift. For what
was the government divided into three branches, but that each should watch over the others
and oppose their usurpations?" --Thomas Jefferson to Nathaniel Macon, 1821. (*) FE
10:192
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ME, FE = Memorial Edition, Ford Edition. |
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