VIII.4: Thomas Jefferson Fought Against Judicial Review

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Thomas Jefferson Fought Against Judicial Review

Thomas Jefferson was not involved in writing the U.S. Constitution, as he was America’s ambassador to France at the time.

But later he worked against the Federalists, who wrote the Constitution. Judicial review was not a part of the Constitution. But it was supported by Alexander Hamilton (See my earlier post) in the Federalist Papers. Then, it was declared as court policy by Federalist John Marshall, Chief Justice of the Supreme Court. But Thomas Jefferson Fought Against Judicial Review with great passion:

[T]he opinion which gives to the judges the right to decide what laws are constitutional … would make the judiciary a despotic branch. (Jefferson, 1804)

[N]othing in the constitution has given them [the courts] a right to decide for the executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. (Jefferson 1804)

The constitution … is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. [W]hatever power in any government is independent, is absolute also…. (Jefferson 1819)

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. I know no safe depository of the ultimate powers of the society but the people themselves…. (Jefferson 1820a)

Moreover, Jefferson was hostile toward the Supreme Court in general:

The judiciary of the US. is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. (Jefferson, 1820b)

The federal judiciary [is] an irresponsible body … [W]henever all government … shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another [nation versus state] …. (Jefferson, 1821a)

Our government is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the federal judiciary…. (Jefferson, 1821b)

It is a misnomer, to call a government republican, in which a branch of the supreme power is independent of the nation. … [W]hatever power in any government is independent, is absolute also…. (Jefferson, 1821c)

That there should be public functionaries independent of the nation … is … of the first order of absurdity and inconsistency. (Jefferson 1822)

Likewise, James Madison opposed judicial review:

The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated. (Madison 1800)

[R]efusing or not refusing to execute a law….… makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper. (Madison 1788b)

As the people are the only legitimate fountain of power … it seems strictly consonant … to recur to the same original authority…. The several departments being perfectly co-ordinate, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments … to be redressed, without an appeal to the people themselves. (Madison 1788a)

Clearly, Thomas Jefferson Fought Against Judicial Review. But were his attacks on the power of the court system based on justice or on jealousy? And how much weight should Madison’s views carry, as the Father of the Constitution? Most importantly, how could our court system work better than it does now?

This site is for discussing how to improve our political system. It is NOT for discussing party politics or political figures. So if you have a non-partisan question or comment, feel free to leave it below.

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Sources:

Jefferson, Thomas. 1804. Letter to Abigail Smith Adams on Sep. 11. The Founders Online. https://founders.archives.gov/documents/Jefferson/99-01-02-0348 (Accessed Jul. 11, 2017).

Jefferson, Thomas. 1819. Letter to Spencer Roane on Sep. 6. The Founders’ Constitution. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html (Accessed Jul. 12, 2018).

Jefferson, Thomas. 1820a. Letter to William Charles Jarvis on Sep. 28. The Founders Online. https://founders.archives.gov/documents/Jefferson/98-01-02-1540 (Accessed Jul. 29, 2018).

Jefferson, Thomas. 1820b. Letter to Thomas Ritchie on Dec. 25. The Founders Online. https://founders.archives.gov/documents/Jefferson/98-01-02-2444 (Accessed Jul. 11, 2017).

Jefferson, Thomas. 1821a. Letter to C. Hammond on Aug. 18. The University of Virginia Press. http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-04-02-02-2260 (Accessed Jun. 24, 2018).

Jefferson, Thomas. 1821b. Letter to Thomas Ritchie on Nov. 23. The Founders Online. https://founders.archives.gov/documents/Jefferson/98-01-02-2444 (Accessed Jun. 24, 2018).

Jefferson, Thomas. 1821c. Letter to James Pleasants on Dec. 26. The University of Virginia Press. http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-04-02-02-2527 (Accessed Jun. 24, 2018).

Jefferson, Thomas. 1822. Letter to William T. Barry on Jul. 2. Constitution Society. http://www.constitution.org/tj/ltr/1822/ltr_18220702_barry.htm (Accessed Jul. 29, 2018).

Madison James. 1788a. Paper No. 49. In The Federalist Papers by Alexander Hamilton, James Madison and John Jay.

Madison, James. 1788b. Observations on Jefferson’s Draft of a Constitution for Virginia on Oct. 15. University of Chicago Press. http://press-pubs.uchicago.edu/founders/documents/v1ch17s25.html (Accessed Jun. 28, 2018).

Madison, James. 1800. “The Report of 1800, [7 January] 1800,” Founders Online, National Archives, version of January 18, 2019, https://founders.archives.gov/documents/Madison/01-17-02-0202. [Original source: The Papers of James Madison, vol. 17, 31 March 1797–3 March 1801 and supplement 22 January 1778–9 August 1795, ed. David B. Mattern, J. C. A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue. Charlottesville: University Press of Virginia, 1991, pp. 303–351.] (Accessed Jul. 29, 2018).

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