Thomas Jefferson on
Politics & Government |
 
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18. Judicial Review
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.
"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
"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
"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
"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
"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
"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
"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
Each Department is Independent
"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
"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
"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
"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
"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
"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
"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
"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
"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
"[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
Cross References
To other sections in Thomas
Jefferson on Politics & Government:
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