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Some light Sunday reading: Thomas Jefferson on Judicial Review

Thomas Jefferson on 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.

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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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Much more at link on this and Jefferson's beliefs on a plethora of topics.

Evie Happy

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Quite prophetic

He was indeed correct. As we know, the judges now think they can make law with the doctrine of a 'living' constitution (it means what I say it means).

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Re:Quite prophetic

Hi, Kiddpeat.

Every Constitutional law class begins with Marbury v. Madison. The point is, the Constitution does not specify who decides what is or is not in accord with it. If not the Supreme Court, then who does? That was essentially Marshall's argument (with concurrence of the other five justices -- the SCOTUS was originally only a 6-judge court; it was expanded to avoid the possibility of ties, and because there was a need for more circuits). Since laws are passed by the Legislative with the concurrence of the Executive (unless a veto is overridden), having the third branch responsible for determining a law's constitutionality is most in keeping with the Separation of Powers that unerlies the Constitution. And Jefferson was wrong when he said this allows a tyrannical court, because given enough consensus, the Constitution can be amended to render moot the SCOTUS decision on any point but one (bet you don't know off the top of your head the one feature of the Constitution that's not subject to amendement!)
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