John Marshall’s “twistifications in the case of Marbury, in that of Burr, & the late Yazoo case, shew how dexterously he can reconcile law to his personal biasses.”
Jefferson to James Madison
March 5, 1810

Jefferson had a strange and now discredited relationship with the Supreme Court. Because he was an ardent republican–that is, one who believed that the people are sovereign and that they should govern themselves through majority rule–he was severely critical of the idea of “Judicial Review.” The concept of judicial review (judicial veto) is nowhere articulated in the Constitution of the United States. It was foisted upon the Constitution by Jefferson’s distant cousin and bete noir John Marshall, in the famous case Marbury v. Madison in 1803.

Jefferson’s view was that if the Founding Fathers had wanted to give the Supreme Court the power of judicial review, they would have written that power into the Constitution in 1787. He regarded Marshall’s brilliant decision in Marbury v. Madison as a kind of silent junta that overthrew the clear intentions of the Constitution.

Jefferson believed so strongly in the sovereignty of the people that he nearly subscribed to Rousseau’s principal that ‘the people are always right even when they are wrong.’ Jefferson advocated what might be called a “tripartite” theory of the Constitution: that each of the three branches of the national government should interpret the constitution, and that no single branch should be the final arbiter. He would have preferred the courts to be senior advisers who might suggest that Congress had overstepped its bounds or violated some principle of the Bill of Rights or the Constitution, but that these pronouncements would be advisory rather than determinative.

Jefferson also believed that the states, including individual states, should have the right to weigh in on constitutional questions, because the Tenth Amendment made them sovereign in all affairs not truly national or international, and that they would need to guard their limited sovereignty against national government encroachments. This was the basis of his Kentucky Resolutions in 1798.

Jefferson’s system may have been “republican,” but it was not workable, and it has long since been relegated to a jurisprudential Siberia.

The Supreme Court is thus infinitely more powerful in our time than it was in his. Today, nine unelected and essentially unimpeachable men and women can affect the lives (and rights) of a third of a billion people. Jefferson would find this absolutely appalling both in constitutional (and republican) theory and practice. In Jefferson’s terms, why should the nine members of the Supreme Court be able to set policy for 330 million other people about such issues as abortion, religious expression, gay marriage, stem cell research, eminent domain, etc.? These questions are so important–in Jefferson’s mind–that they must be decided by The People–not a tiny handful of men and women who clearly have good days and bad days, prejudices and biases, politics, and hidden sympathies. To put so much power into the hands of so few is inherently un-republican and un-Jeffersonian.

Keep in mind that when I use the term “republican” (see above), I mean “of classical republican theory” and not the modern Republican Party.

Jefferson named three men to the Supreme Court. William Johnson of South Carolina served from 1804-1834. Henry Brockholst Livingston served from 1806-1823. And Thomas Todd  served from 1807-1826. Todd has been called one of the two or three most ineffectual justices in American history. Livingston generally sided with Chief Justice Marshall. And though Johnson was a serious Jeffersonian, even he disappointed the state’s rights republican president during TJ’s time in the presidency–and after.

Congress approved Jefferson’s appointments with grace. Members of the Senate recognized rightly that the President had a duty to fill vacant seats and a right to surround himself with people of his own political persuasion. Elections matter. And Congress cannot nominate Supreme Court justices. Congress can only approve or refuse to approve.

Clay Jenkinson

Further Reading:
» What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States.
by James F. Simon.
» The Constitutional Thought of Thomas Jefferson.
by David N. Mayer.
» Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary.
   by Joseph Wheelan.