Thomas Jefferson, the Apostle of Americanism

by Gilbert Chinard

The original draft of Jefferson's message to Congress, December 8, 1801, contained a paragraph which, after more mature reflection, the President decided to omit "as capable of being chicaned, and furnishing something to the opposition to make a handle of."[420] In it Jefferson held the theory that the three powers existing in any government had been distributed among three equal authorities, constituting each a check on one or both the others. The President asserted that each of these three branches of the government had a right "to decide on the validity of an act according to its own judgment and uncontrouled by the opinions of any other department." According to this theory, even if opposition developed among different departments, no permanent ill could ensue, since at the next election the people were at liberty to refuse to reëlect those whose interpretation seemed erroneous.

Jefferson's disapproval of the Sedition Act had been known for a long time; he had a right to assume that his election meant that the people approved of his position and to make this declaration:

On mature deliberation, in the presence of the nation, and under the tie of the solemn oath which binds me to them and to my duty, I do declare that I hold that act in palpable and unqualified contradiction to the constitution, considering it then as a nullity, I have relieved from oppression under it those of my fellow citizens who were within the reach of the functions confided to me.

In its final form the message was far less provocative. It simply contained the statement that "the judiciary system ... and especially that portion of it recently enacted, will, of course, present itself to the contemplation of Congress." But the Federalists and particularly Marshall were not placated by this apparent moderation; they knew that the assault against the judiciary was about to begin. The debate between Federalists and Republicans had already been transferred to another ground.

No better account of it can be found than the chapters written on the subject by Albert J. Beveridge in his "Life of Marshall." It must be remembered, however, that Beveridge's account was necessarily colored by his own political views, as were the views of most historians of the subject.[421] One of the first episodes of the battle was the repeal of the Judiciary Act passed in 1801 by the Federalists, in order to reorganize the Supreme Court and to increase the number of Federal judges. This was immediately followed by the impeachment of Judge Pickering, the deposition of Judge Addison by the Senate of Pennsylvania, and the famous decision given by Marshall on "Marbury versus Madison." These incidents were of unequal importance and significance. It was recognized by Pickering's friends and family that the judge was half-demented and for several years had been unable to fulfill his duties. But since the Act of 1801 had been repealed, no one seemed to have authority at the time to remove the judge from office. The Pickering case simply provided the Republicans with an opportunity to test out their favorite contention, that impeachment was unrestricted and could be enforced against any officer of the government deemed undesirable by two thirds of the Senate.

Of far greater importance was the decision of Marshall in "Marbury versus Madison." The senior member of the Supreme Court formulated on this occasion a doctrine on the powers of the Court which, although never written in the Constitution, was to obtain final recognition and which to this day had remained one of the many unwritten laws of the land. Another most curious situation this, so disconcerting to historians and observers trained in the principles of Roman law, but often recurring in American politics and administrative life. The case itself was of no importance. Marbury was one of the "midnight judges" whose commission, signed by Adams, had been withheld by Madison, on the theory that the powers of the former President to make appointments had really expired, not on the third of March, 1801, at midnight, but on the day his successor was elected. It was maintained by the administration that the commission not having been delivered Marbury had no right to take office and to sit on the bench. Marbury had appealed to the Supreme Court, but the sessions of the Court being suspended for fourteen months by Congress, Marshall had at first no opportunity to declare himself publicly on the matter.

When he finally passed on the case, the Chief Justice saw at once that his hour had come, and gave his definition of the powers of the Court in its relation to the executive and the legislative. Curiously enough, as Beveridge remarked, the matter had never before come up and would have remained undecided for a long time, if this particular juncture had not made it a question of paramount importance for the destinies of the country. Briefly summed up, the theory of Marshall, shorn of its legal phraseology, was this: The happiness of the American people rested on certain principles embodied in the Constitution. These principles could not be altered by legislation; if, however, the legislative passed a law evidently contrary to the Constitution, there must be for the individual some recourse, some means of asserting his rights. In cases where Congress adopts laws contrary to the Constitution, these laws must be void. On this principle Jefferson and Marshall were in complete agreement. But from that point on they differed widely. The next question was to determine where does the power rest to declare a law unconstitutional? With the Executive and even with the States, Jefferson had first declared in his draft of 1801. With the Supreme Court, answered Marshall; for this is essentially a judicial function. Under this construction, the Constitution remains the supreme law of the land, but it is within the powers attributed by the Constitution to the judiciary, for the Supreme Court to decide on the constitutionality of an act passed by the legislature. Thus the Court is not placed above the Constitution, but its judges stand as the keepers and interpreters of the superior law of the country.

Jefferson did not engage directly in a controversy with Marshall and held his peace. But, as he was wont, he seized another opportunity to express his views on the subject, and he did it in his letter written to Mrs. Adams on September 11, 1804. In this, he maintained that "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." Judges believing a law to be constitutional have a right to pass sentences. But "the Executive believing the law to be unconstitutional were bound to remit the execution of it; because that power has been confided to them by the Constitution." What he did not say on this occasion, but repeated on many others, was that, the ultimate source of authority resting in the people, it was for the people to decide at the next election in case a conflict of interpretation should arise between any of the three branches of the government. In case of a conflict between the judiciary and the legislative, however, impeachment proceedings could be initiated and judges removed in a regular and, according to him, perfectly constitutional way.

It must be recognized here that the position taken by Jefferson was perfectly logical, far more logical than the interpretation given out by Marshall. Whether Jefferson's theory would have worked out satisfactorily is quite another matter. It is only too evident that perfectly logical constructions do not always fit the complexity and contradictions of human affairs. The system of democracy which was Jefferson's ideal at that time might have worked in the case of a New England town meeting; it would have been more difficult to apply to the government of a State. In the case of a large and growing federation of States, it would have injected into presidential and congressional elections constant elements of discord and bitterness. Thus the cost of liberty would not have been eternal vigilance, but eternal strife and political dissensions.

It may even be doubted whether Jefferson would ever have entertained such an extreme theory if at that time he had not been moved by immediate considerations. He had come to see in the judiciary, as it was constituted after the appointments made by Adams, an institution endangering the very life of the Republic. As for Marshall, who had hurled a challenge at the executive and the legislative branches of the government, it had to be ascertained whether some means could not be found to remove him from office.