by Thomas Jefferson


In Marbury vs Madison Jefferson Saw the Beginning of Judicial Tyranny

Early in his career Jefferson was concerned for the independence of
the judiciary in order that it be strong and to prevent injustice.
However, when the federalists focused their efforts on the transfer
to Washington of the power reserved in the Constitution to the
States, using the power that they had obtained in the judiciary, he
began to view with alarm the subversion of the judiciary and its
independence of the nation. To the prevention of their objective
Jefferson devoted the rest of his life. The following quotations may
be found in Jefferson: Magnificent Populist, by Martin Larson, pp
136-142

Judicial tyranny was the subject of many of his letters ...

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. Letter to Mrs. John Adams, Nov. 1804


He said judicial tyranny made the Constitution "a thing of wax."

If [as the Federalists say] the judiciary is the last resort in
relation to the other departments of the government, , then
indeed is our Constitution a complete felo de so. 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 may please. It should be remembered, as an axiom of
eternal truth in politics, that whatever power in any government
is independent, is absolute also; in theory only, at first, while
the spirit of the people is up, but in practice, as fast as that
relaxes. Independence can be trusted nowhere but with the people
in mass. They are inherently independent of all but moral law
Letter to Judge Spencer Roane, Nov. 1819

Jefferson was plainly alarmed by the possibility of judicial
tyranny.

You seem to consider the judges the ultimate arbiters of all
constitutional questions; a very dangerous doctrine indeed, and
one which would place us under the despotism of an oligarchy. Our
judges and their power [are] the more dangerous as they are in
office for life, and are 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 . 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 of no safe depository of the ultimate powers of the society,
but the people themselves. . Letter to Mr. Jarvis, Sept, 1820

Jefferson plainly had an answer against judicial tyranny.

This case of Marbury and Madison is continually cited by bench and
bar, as if it were settled law, without any animadversions on its
being merely an obiter dissertation of the Chief Justice . But
the Chief Justice says, there must be an ultimate arbiter
somewhere. True, there must; but . The ultimate arbiter is the
people . Letter to Judge William Johnson, June 1823

He saw where judicial tyranny was leading.

When all government, domestic and foreign, in little as in great
things, shall be drawn to Washington as the centre of all power,
it will render powerless the checks provided of one government on
another, and will become as venal and oppressive as the government
from which we separated . Letter to C. Hammond, July 1821

He saw judicial tyranny as a subtle undermining of the Constitution.

The judiciary of the United States is the subtle corps of sappers
and miners constantly working underground to undermine our
Constitution from a co-ordinate of a general and special
government to a general supreme one alone. This will lay all
things at their feet. I will say, that against this every man
should raise his voice, and, more, should uplift his arm
Letter to Thomas Ritchie, Sept. 1820

Jefferson saw judicial tyranny as an all-out assault on the
Constitution.

I fear, dear Sir, we are now in such another crisis [as when the
Alien and Sedition Laws were enacted], with this difference only,
that the judiciary branch is alone and single-handed in the
present assaults on the Constitution. But its assaults are more
sure and deadly, as from an agent seemingly passive and
unassuming. Letter to Mr. Nicholas, Dec. 1821

He saw judicial tyranny as the greatest danger to the nation.

there is no danger I apprehend so much as the consolidation of
our government by the noiseless, and therefore unalarming,
instrumentality of the Supreme Court. Letter to William Johnson, Mar. 1823

For judges to usurp the powers of the legislature is
unconstitutional judicial tyranny.
One single object ... will entitle you to the endless gratitude
of society; that of restraining judges from usurping legislation.
Letter to Edward Livingston, Mar. 1825

A Constitutional Amendment to Thwart Judicial Tyranny?
More than once Jefferson expressed his desire for a Constitutional
amendment that would clearly block the power the judiciary had
unconstitutionally usurped, which they began to do in 1805, in the
case of Marbury v. Madison, and got away with it.

But the Constitution did not give the judiciary power to legislate,
nor to decide for the other branches what is, or is not,
constitutional. That is a power they left with the people, according
to the Ninth and Tenth Amendments:

The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
-- Amendment IX

The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people. -- Amendment X