[This article was excerpted from chapter 3 of Reassessing the Presidency, edited by John V. Denson.]

When Jefferson ran for president in 1800, he made it clear that he supported strict construction, original intent jurisprudence, federalism, and states’ rights:

I do then, with sincere zeal, wish an inviolable preservation of our present federal Constitution, according to the true sense in which it was adopted by the States. … I am for preserving to the States the powers not yielded by them to the Union, and to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the General Government, and all those of that government to the executive branch.

He confessed to his friend and political ally from Connecticut, Gideon Granger, that he was sincerely

attached to the preservation of the federal Constitution according to its obvious principles, and those on which it was known to be received; attached equally to the preservation to the States of those rights unquestionably remaining with them.

He warned his friend that “our country is too large to have all its affairs directed by a single government” and if ever the powers of the state governments should become concentrated in the general government “it would become the most corrupt government on the earth.

In his first annual message to Congress, Jefferson charged that

this government is charged with the external and mutual relations only of these states; [and] that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns.

He promised that his consistent objective as president would be “to preserve the general and State governments in their constitutional form and equilibrium.”

When the Federalists began to develop their theory of federal judicial review in the aftermath of their crushing political defeat in 1800, Jefferson quickly denounced it as unrepublican and contrary to the intent of the framers and the state ratifying conventions. Jefferson argued that such a power would violate the separation of powers and make the least republican of the three branches of government the most powerful, thus striking a blow against “the vital principle of republics,” which was “absolute acquiescence in the decisions of the majority” on all matters entrusted to them by the Constitution.

Chief Justice John Marshall asserted in his Marbury decision that the federal courts had the final right to decide questions of disputed constitutionality and the authority to set aside federal laws which they thought contrary to the Constitution.

Jefferson argued that an alternative doctrine, concurrent review, was closer to the intentions of the framers and the ratifying conventions. According to Jefferson, each branch of the federal government, plus the state governments, had the right to interpret the Constitution for itself, and none had the right to bind the others by its decision. Jefferson explained this doctrine in a private letter written while he was president:

The judges, believing the law [the Sedition Act] constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive [Jefferson], believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion [Marshall's] 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 legislative and executive also in their spheres, would make the judiciary a despotic branch.

Dumas Malone, Jefferson’s biographer, concedes that “jurists of our day” may find Jefferson’s doctrine of constitutional interpretation “vague and remote.” However, he points out that in Jefferson’s

own day … and for some decades thereafter it approximated the actualities of the government situation. … [T]he legislature and the executive continued to determine for themselves whether or not they were acting within the bounds of the Constitution

It must be kept in mind that Marshall and his allies did not formulate their novel doctrine of judicial review to restrain the power of government or to protect the rights of the people, but to protect governmental measures and institutions already enacted by the Federalists and believed to be threatened by the Republicans, such as the Judiciary Acts of 1789 and 1801, the national bank, the navy, and the internal tax system. In other words, for the Federalists, judicial review was a pro-government measure designed to prevent democratic majorities from shrinking the size or reducing the powers of government. The Federalists, after all, were the party of active government and liberal construction of the Constitution.

Two modern constitutional historians have made the case that concurrent review “favors limited government” by making it more difficult for the federal government to embark on a new area of legislation or regulation. While this is true, Jefferson’s primary concern was to prevent the will of the majority from being subverted or thwarted by the federal courts. Under concurrent review, the courts could pronounce a law unconstitutional, but they could not bind the other two branches; they could render an opinion, but they could not enforce it. The president would be free to block the execution of a law whose constitutionality he disputed, or to continue to execute a law even though it had been declared unconstitutional by the courts.

Concurrent review also applied to the several states. Jefferson did not believe that the states were bound to submit in all cases to the Supreme Court, to presidential decree, or even to federal law. As he put it in his draft of the 1798 Kentucky Resolutions,

the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of mode and measure of redress.

Jefferson understood that the true meaning of the supremacy clause was to render the Constitution itself the supreme law of the land; federal law was to be considered supreme and binding on all only when it was consistent with the Constitution. The clause reads:

The Constitution, and the laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.

Although he was himself a nationalist, Henry Adams understood perfectly the issue that was at stake when Jefferson and his party assumed power in 1801: namely, whether the Republican “revolution” would be truly revolutionary. In other words, would they make the kind of fundamental reforms that would last beyond their time in power? Adams wrote:

The essence of Virginia republicanism lay in a single maxim: THE GOVERNMENT SHALL NOT BE THE FINAL JUDGE OF ITS OWN POWERS. The liberties of America, as the Republican party believed, rested in this nutshell; for if the Government, either in its legislative, executive, or judicial departments, or in any combination of them, could define its own powers in the last resort, then its will, and not the letter of the Constitution, was law. To this axiom of republicanism the Federalist Judiciary opposed what amounted to a flat negative. Chief-Justice Marshall and his colleagues meant to interpret the Constitution as seemed to them right, and they admitted no appeal from their decision. … The question how to deal with the Judiciary was, therefore, the only revolutionary issue before the people to be met or abandoned; and if abandoned then, it must be forever. No party could claim the right to ignore its principles at will, or imagine that theories once dropped could be resumed with equal chance of success. If the revolution of 1800 was to endure, it must control the Supreme Court. The object might be reached by constitutional amendment, by impeachment, or by increasing the number of judges.

Just days before Jefferson was to be sworn in as the third president, the lingering Federalist majority passed, and President Adams signed into law, the Judiciary Act of 1801. It reduced the number of Supreme Court justices from six to five (to deprive Jefferson of an early appointment when the next justice retired), abolished the existing federal circuit courts, created six new circuit courts, and divided the latter into 23 districts presided over by 16 new federal circuit judges. These became known as “the midnight judges,” since President Adams appointed Federalists to all the new positions.

The act also added to the number of federal marshals, district attorneys, and law clerks. Most ominously for the Republicans, it vested jurisdiction of all “federal questions” in the circuit courts. A federal question referred to those areas of law over which the Constitution had vested jurisdiction in the Supreme Court and in such inferior courts as Congress might establish. The Constitution defined federal questions as “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made”  The Judiciary Act of 1789, which had established the federal court system, had wisely left the question of federal jurisdiction to the state courts, but it had allowed appeals of state supreme-court decisions to be heard before a federal circuit court. Clearly, the Judiciary Act of 1801 was a last minute effort by the Federalists to erect some kind of judicial barrier against the feared revolutionary measures of the incoming administration.

The creation of patronage positions for Federalist lawyers was an incidental benefit. Jefferson described the new judicial establishment as “a parasitical plant engrafted at the last session on the judiciary body. The Federalists, he wrote,

have retired into the Judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the Treasury; and from that battery all the works of republicanism are to be eaten down and erased.

He regarded the act as a moral nullity, since it was passed by a party that had already been repudiated by the majority and was on the verge of surrendering power. For these reasons, he and his party were determined to repeal it at the earliest opportunity. After taking care of more pressing matters having to do with federal taxation, spending, and debt, the Jeffersonians, in December 1801, turned their attention to repeal. After a long and bitter debate, the Republicans passed the Repeal Act on March 8, 1802. It restored the old judicial system and abolished the new judgeships and federal district attorneys. Henry Adams estimated that the repeal saved $30,000 a year. A month later, the Republicans passed the Judiciary Act of 1802, which restored to six the number of Supreme Court justices, created six circuit courts, and fixed one term annually for the high court.

The question now was what would Jefferson do about the Judiciary Act of 1789, which had created a three-tiered federal judicial structure. The top of the structure was a six-member Supreme Court staffed by a chief justice and five associate justices. The middle tier was made up of three circuit courts to be staffed only twice a year by a district judge and two itinerant Supreme Court justices. On the bottom were district courts presided over by a district judge; each state had one district court, except Virginia and Massachusetts, each of which had two.

Henry Adams described this act as “a triumph of Federalist centralization,” for it

had conferred on the Supreme Court jurisdiction over the final judgment of State courts in cases where the powers of the general government had been “drawn in question” [that is, federal questions] and the decision was unfavorable to them.

As Adams pointed out, defenders of states’ rights feared that this act eventually would “make the state judiciaries inferior courts of the central government,” for

the powers of the general government might be “drawn in question” in many ways and on many occasions … until the national courts should draw to themselves all litigation of importance, leaving the State courts without character or credit.

At the time, Senator Richard Henry Lee of Virginia had proposed creating a single appellate federal supreme court with no other federal courts at all, except for a few admiralty courts. All cases arising under federal jurisdiction would be tried before state courts and only on appeal would they be brought before the supreme court. Other Republicans proposed a larger supreme court that would travel about the country to hear all federal cases. The Federalist-controlled Congress rejected both options and chose the more centralist and elaborate judicial system proposed by Senator Oliver Ellsworth of Connecticut.

Jefferson and the Republicans had two available models with which they could have replaced the Judiciary Act of 1789. Yet they made no effort to repeal it. What is more, with the important exception of trying the remedy of judicial impeachments, they made no effort to enact any other kind of judicial or constitutional reform.

According to Henry Adams, Jefferson’s biggest failure (next to the embargo) was his unwillingness to take advantage of the momentum and prestige of victory and his overwhelming Republican majority in Congress to enact fundamental judicial and constitutional reform. As he correctly points out, “loopholes for the admission of European sovereignty into the citadel of American liberty were seen in 1800 as clearly as [in 1860].” While Adams is in no way sympathetic to Old Republican political and constitutional theories, he is undoubtedly right to point to the significance of Jefferson’s failure to institutionalize his revolution. With the single exception of impeachments, Jefferson did not even try to enact constitutional safeguards against the dangers posed by national centralism and neomercantilism. Why he did not do so remains something of a mystery.

Jefferson was certainly aware of Federalist plans for a more “energetic” government. And he was not ignorant of possible reforms, for a prominent Virginia Republican had proposed a set of them in October 1801. Judge Edmund Pendleton, head of the Virginia Court of Appeals, published an influential article in the Richmond Enquirer entitled “The Danger Not Over.” The article was soon reprinted in the administration newspaper, the Washington National Intelligencer. Pendleton’s article was a classical republican manifesto full of negative references to the dangers posed to American liberty by standing armies, undeclared war, executive influence, government debt, excessive civil offices, legislative corruption, judicial irresponsibility, and consolidated central power.

Pendleton warned that Americans should not be complacent simply because faithful Republicans were now holding the reigns of power, for men were “fallible,” new men of uncertain principles inevitably would succeed them, and experience had already shown that “much mischief may be done under an unwise administration, and that even the most valuable parts of the Constitution, may be evaded or violated.” As a result, he urged them to take advantage of the opportunity provided by the temporary overthrow of Federalist men and principles “to erect new barriers against folly, fraud and ambition; and to explain such parts of the Constitution, as have been already, or may be interpreted contrary to the intention of those who adopted it.”

Pendleton suggested the following constitutional amendments to correct several notable “defects” in the Constitution. As he believed the presidency was too powerful, he proposed that the president be ineligible for a second term, and his power of appointing federal judges and ambassadors be transferred to the House of Representatives. He also believed the federal Senate was too powerful, and he recommended either shortening senators’ terms of service or making them removable by the state legislatures, and depriving them of their “executive” powers (the power to ratify treaties and confirm appointments), which presumably would be transferred to the House.

Pendleton saw a defect in the irresponsibility of the federal judiciary. He proposed that by a concurring vote of both houses, Congress could remove federal judges and Supreme Court justices from office. He believed there to be a lack of restrictions on the power of the federal government to borrow money and go into debt. Pendleton suggested “some check” on this power, although he did not specify what kind.

He was also worried about the lack of precision in certain areas and the existence of some general phrases in the Constitution that provided opportunities for mischievous constructions. He recommended “defining prohibited powers so explicitly, as to defy the wiles of construction.” He recommended that the Constitution should state explicitly that the common law of England was not a part of the law of the United States, and that the crime of treason was “confined to the cases stated in the Constitution” and could not be extended further by law or construction.

He also believed that there existed too much uncertainty about the exact boundaries between the federal and state spheres of authority. Therefore, he suggested that “the distinct powers of the General and State Governments” should be “marked out with more precision.” He closed his article by quoting from an unnamed classical-republican author who had observed “that of men advanced to power, more are inclined to destroy liberty, than to defend it.” He urged them not to let this propitious opportunity be lost before forming “new barriers to counteract recent encroachments on their rights.”

Adams himself wondered why Jefferson never pushed for an amendment to excise “certain phrases in the Constitution [which] had been shown by experience to be full of perils, and were so well-established by precedent in their dangerous meaning,” such as the necessary and proper clause. He wondered why Jefferson did not try to limit constitutionally the war- and treaty-making powers “with their undefined and therefore unlimited consequences.” He also asked why Jefferson did not ask Congress “to confirm the action of Virginia and Kentucky by declaring the Alien and Sedition Laws to be unconstitutional and null as legislative precedents.” After all, as Adams points out, John Taylor and other Virginia Republicans at the time thought that Congress should have formally repealed those laws instead of merely allowing them to expire according to statute.

Jefferson also did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall’s opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review. Jefferson believed that since Marshall’s opinion was issued obiter dictum (an incidental opinion having no bearing on the case in question, and hence not binding) and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it.

Last, Jefferson erred by deciding against pushing for an amendment to authorize the Louisiana Purchase and to answer the questions raised by territorial expansion — namely, which other North American territories could be incorporated in the Union, how could they be incorporated lawfully, what powers exactly did Congress and the president have over the territories, and what would be the exact procedure for forming new states out of them and admitting them to the Union.

Jefferson also failed to appoint a states’ rights Republican to the Supreme Court who could rival John Marshall in erudition, strength of personality, and determination to uphold a consistent constitutional philosophy. Jefferson had three Supreme Court appointments. He appointed William Johnson of South Carolina in 1804, Henry Brockholst Livingston of New York in 1806, and Thomas Todd of Kentucky in 1807. Although all three were Republicans, none of them consistently upheld the compact theory of the Constitution, or what was then known as the Virginia school of constitutionalism.

Johnson, who was the most republican of the three, cited Marbury as a precedent and concurred in Marshall’s major centralizing opinions (McCulloch v. Maryland; Martin v. Hunter; Gibbons v. Ogden; and Dartmouth College v. Woodward).

Livingston was an even greater disappointment than Johnson. Instead of helping to form a Jeffersonian phalanx on the court, he quickly fell under Marshall’s influence and voted with the nationalist majority on all major cases.

Thomas Todd, whom Jefferson appointed to fill a newly created sixth associate justice position, turned out to be a non-entity, a mere rubber stamp for Marshall and Joseph Story.

Historians have little or nothing to say about Jefferson’s Supreme Court appointments. Neither Henry Adams nor Dumas Malone even discuss them. Yet here was Jefferson’s best chance to counter John Marshall. With three strong Republican appointments, Jefferson could have reduced Marshall’s majority to a bare 4–3 by 1807. With just one more solid appointment in 1811, Jefferson’s hand-picked successor, Madison, could have ended the Marshall Court and begun a Jeffersonian Court with strict constructionist, states’-rights jurists in the majority.

In the meantime, vigorous dissenting opinions issued by Jeffersonian jurists could have weakened the force of Marshall’s opinions and added legitimacy to future reversals. Because Marshall’s most seminal nationalist decisions, apart from Marbury in 1803, came after the War of 1812, Jefferson could have changed the whole course of constitutional history.

Why did Jefferson make such weak appointments? It was not because there were no intellectually formidable jurists committed to states’ rights and strict construction. Actually, there were many available, including two prominent Virginians with whom Jefferson corresponded. Judge Spencer Roane (1762–1822) had been on the Virginia Court of Appeals since 1794 and, after the death of Edmund Pendleton in 1803, became its recognized leader. President-elect Jefferson was apparently considering appointing him to the position of chief justice of the Supreme Court before Adams appointed Marshall just six weeks before he was to leave office. Why Jefferson at the first opportunity did not appoint Roane to the court as a check upon Marshall is not clear.

Another formidable Virginia jurist who shared Jefferson’s constitutional and judicial philosophy was St. George Tucker (1752–1827). Tucker had been a judge of the general court of Virginia for twelve years and a professor of law at the college of William and Mary from 1800–1803, and he was elected to the state court of appeals in 1803 to fill the vacancy created by the death of Pendleton. In the same year, he published a five-volume annotated edition of William Blackstone’s Commentaries of the Laws of England. Tucker suffused his “republicanized” version of Blackstone with the doctrines of states’ rights, strict construction, and the compact theory.

There is no doubt that Roane and Tucker were the intellectual and scholarly equals, and possibly superiors, of Marshall and that they would have challenged his centralizing and nationalistic opinions at every opportunity. If Jefferson had appointed these two men to the court and favored a true Republican, instead of Madison, to be his successor, it is very likely that the Marshall Court would have come to an end in 1811; and historians would now be writing about a Roane or a Tucker Court during the 1810s and 1820s.

Jefferson did try the experiment of whether Congress’s power of impeachment could be used as a means of disciplining or checking the power of federal judges and Supreme Court justices. In February 1803, Jefferson recommended to the House that they consider the impeachment of Federal District Judge John Pickering of New Hampshire. Jefferson charged that Pickering’s habitual drunkenness rendered him unfit to perform his duties and that such dereliction constituted a misdemeanor that was legal grounds for impeachment. On March 3, 1803, the House voted 45–8 to impeach Pickering. A year later, on March 12, 1804, the Senate found Pickering guilty of a misdemeanor and ordered him removed from office.

Jefferson was certainly pleased with Pickering’s impeachment, but it was two other events in the late winter and spring of 1803 that finally motivated him to recommend to his chief supporters in Congress the impeachment of a Supreme Court justice. On February 24, 1803, John Marshall rendered his gratuitous and bold assertion of judicial power in Marbury v. Madison. Jefferson was alarmed and angered by the decision.

Then, on May 2, Associate Justice Samuel Chase of the Supreme Court delivered a political harangue before a grand jury in Baltimore. Chase denounced the Republican’s repeal of the Judiciary Act of 1801, the recent adoption of universal manhood suffrage by the state of Maryland, and “the modern doctrines of our late reformers [the Jeffersonians], that all men in a state of society are entitled to enjoy equal liberty and equal rights.” Chase warned the jury that unless these changes were reversed and the doctrines behind them repudiated, the government would become “a mobocracy … and peace and order, freedom and property, shall be destroyed.”

Jefferson was infuriated. He considered Chase’s comments to be “seditious,” constituting an “official attack on the principles of our Constitution and the proceedings of a State.” Consequently, just ten days later, he wrote a letter urging one of his chief supporters in the House to begin impeachment proceedings against Chase. For Jefferson, the time had arrived to humble the power and pretensions of the Federalist-controlled Supreme Court and at the same time to see if impeachment could function as an effectual legislative check upon the judiciary. On March 12, 1804, the House voted to impeach Chase by a vote of 73–32. The Senate trial would begin a year later. The chief House managers at the Senate trial were John Randolph of Virginia, Joseph Nicholson of Maryland, and George W. Campbell of Tennessee.

Samuel Chase was an arch-Federalist of imperious habits who had allowed his own political partisanship to influence his official duties as an associate justice of the Supreme Court. Chase had favored the government prosecution in his handling of two important sedition trials in Baltimore in 1800; he had left the bench without a quorum in order to campaign for John Adams the same year; he was also given to harassing Republican lawyers and delivering political diatribes while on the bench.

The House managers brought eight articles of impeachment against Chase. The most serious charges were that during the sedition trial of John Fries, Chase had denied the defendant the right to counsel and had treated him in an “arbitrary, oppressive, and unjust” manner; during the libel trial of James Callender, Chase had failed to excuse a prejudiced juror and had refused to hear an important witness for the defense; after a federal grand jury in Newcastle, Delaware, had finished its business, Chase kept it in session and urged it to inspect a local paper for evidence of sedition; and Chase had delivered a political speech before the grand jury in Baltimore.

The chief issue before the Senate was what were the proper grounds for judicial impeachment. The Federalists and some Northern Republicans contended that a justice could be impeached only for actual violations of the law (criminal impeachment). The Southern Republicans, led by John Randolph and William Branch Giles, contended that a justice could be impeached for misconduct, partisanship, and abuses of judicial power (political impeachment). The latter was Jefferson’s opinion.

On March 1, 1805, the Senate began voting on the eight articles of impeachment. In order to convict Chase, two-thirds of the senators present (23 out of 34) would have to vote to convict him on at least one article. The most votes to convict were 19 on article eight and 18 on articles three and four. Chase was acquitted. Although Randolph has often been blamed for botching the trial, the real reason for the failure to convict was that five Northern Republicans and one Southern Republican voted to acquit Chase on all eight articles.

Thus, to Jefferson’s and Randolph’s great disappointment, the issue of whether impeachment could be used to check a politicized and consolidationist judiciary had been settled in the negative. Right after the acquittal, John Randolph introduced a resolution that the House should pass and submit to the states an amendment to the Constitution providing that “the judges of the Supreme and all other courts of the United States shall be removed by the President on the joint address of both houses of Congress.”

Joseph Nicholson of Maryland pushed for an amendment empowering the legislature of any state to recall one of their senators and vacate his seat. The House voted to refer both resolutions to the next Congress. Jefferson gave neither amendment any support.

Writing just two years later during the Burr treason trial, Jefferson admitted to one of his chief supporters in the Senate that “impeachment is a farce which will not be tried again.” He observed with alarm that “one of the great coordinate branches of the government [the judiciary]” had set “itself in opposition to the other two and to the common sense of the nation.” He suggested that if Burr were acquitted due to the obstructions placed in the way of conviction by Chief Justice Marshall, who was presiding over the trial, that the people “will see then and amend the error in our Constitution, which makes any branch independent of the nation.”

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Once again Jefferson did nothing. He even sounded as if the president had no power or influence in proposing a constitutional amendment which would have limited the powers of the federal court and made its justices, as well as other federal judges, removable for misconduct. He had many ways of making such a recommendation: he could have drafted a special message to Congress; he could have included it in his upcoming annual message; and he could have suggested it to his chief supporters in Congress. But he did none of these things.

Jefferson should have known better. He should have realized that political power in a republic is ephemeral and that the temptations to abuse power were so great that future administrations and congresses would be sure to seize the forbidden fruit, which was all the more reason to erect as many dikes and moats and eliminate as many unguarded passages to the throne of arbitrary power as was possible. Years later, when Jefferson himself admitted that the enemy was in the camp, he could not say that he had not been warned; his fellow Virginian Republicans, Edmund Pendleton, John Randolph, and John Taylor, had warned him.

Henry Adams suggested four reasons why Jefferson did not push for constitutional revision and reform. First, Jefferson found some federal powers useful for his policy of territorial expansion, such as the treaty-making power. Second, his majority in the Senate was too small: he needed two-thirds to pass an amendment. Third, he could not count on the support of his Northern political allies. Adams contended that while the “Southern Republicans” were strongly committed to limited government, states’ rights, and strict construction, the “Northern democrats” were more interested in making the federal government responsive to the wishes of the people than in restricting its power. Fourth,

Jefferson wished to overthrow the Federalists and annihilate the last opposition before attempting radical reforms. Confident that States-rights were safe in his hands, he saw no occasion to alarm the people with legislation directed against past rather than future dangers.

Adams was right. Early in his presidency, Jefferson made a fateful decision to safeguard the Republican revolution by political rather than constitutional means. His strategy was to draw away the great body of the Federalist voters, most of whom he believed were republican at heart, from their ambitious and unprincipled leaders. Once that had been done, the republic would be safe and fundamental reforms could be enacted. He admitted to a correspondent very early in his presidency that

some things may perhaps be left undone from motives of compromise for a time, and not to alarm by too sudden reformation, but with a view to be resumed at another time. … What is practicable must often controul [sic] what is pure theory; and the habits of the governed determine in a great degree what is practicable.

In the meantime, he hoped “by degrees to introduce sound principles and make them habitual.” In other words, he feared that radical measures would alarm many moderate Federalists and new Republican voters, thus driving them back into the arms of the Hamiltonians and the High Federalists of New England.

Many of Jefferson’s early policy decisions can be explained only by a desire to placate and win over the bulk of the Federalists to the Republican Party. Why else was he so reluctant to remove any but the most partisan or incompetent Federalists from office? Why did he decide only to reduce, instead of abolish, the navy when the latter had been his initial intention and the fond wish of so many of his southern supporters? Why did he decide to send the fleet to the Mediterranean to fight the pasha of Tripoli when he needed only to sign a new treaty with an increased tribute? After all, Jefferson continued throughout his presidency to pay tribute to the other Barbary powers. Jefferson knew that the navy was popular in the eastern states, the region of his weakest strength, and he knew that most navy officers were Federalists. Why did Jefferson support a compromise settlement for the shameful Yazoo bribery scandal, if not to win over New England Federalists who were personally interested in that sordid financial transaction?

There are numerous references in Jefferson’s letters during the course of his presidency indicating how important it was to him that the Republican majority grow and the Federalist minority shrink. Moreover, there are indications that Jefferson was not simply postponing constitutional reform to a later day when the Republicans were stronger, but that he actually regarded such reforms as secondary in importance to winning over the Federalist minority to republicanism:

[S]hould the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious and solid, while so respectable a portion of its citizens support principles which go directly to change of the federal Constitution, to sink the State governments, consolidate them into one, and to monarchize that.

In other words, Jefferson understood that constitutional prohibitions alone would not deter or prevent a determined faction from subverting a government in which they did not believe. By his policies, Jefferson placed stronger emphasis on restoring harmony and unity to the country and on bringing back the great body of the Federalists to their “ancient principles,” “the principles of ’76,” than he did on constitutional reform. Jefferson simply refused to believe that the majority could not be relied upon to defend the Constitution and the cause of liberty. He was sure that while they might stray from sound principles on occasion they would always return to their senses before it was too late.

Historian Scott Trask is an adjunct scholar of the Mises Institute.

Licensed and reprinted under the Creative Commons 3.0 copyright

From Chuck Baldwin: Note: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE.

Yes, yes, we have all heard the remarks from those who would call themselves conservative, libertarian or the like concerning the nomination and now swearing-in of Sonia Sotomayor to the United States Supreme Court, which took place on August 8, 2009.

Yes, yes, books have been written by those conservative and libertarian editorialists and authors who have explained to us that the United States Supreme Court (US S CT) is “out of control” and how we must elect “conservative” Presidents to appoint “conservative” judges. Ironically, this infatuation with the federal government, and specifically with the judicial branch of the federal government, has actually (at least in part) created the growing enslavement of the people of these States United.

Certainly we should care about who sits on the US S CT bench. However, the time has come in our Confederate Republic (the USA) to acknowledge and understand that the power to govern ourselves justly and constitutionally is in the hands of the people of the several states of America–NOT in the hands of the branches of federal government.

What most people in America have been duped to believe is that the US S CT is the final arbiter in all matters concerning government actions related to the US Constitution.

When it comes to US S CT rulings that contradict the US Constitution and that reject the historical facts and principles of our Republic, people feel hopeless and think that regaining freedom somehow means replacing the “liberal” judges with “conservative” judges. Such an approach to preserving freedom is not only un-American; it is fruitless and ineffectual. History now proves this.

Additionally, this approach proves that the vast majority of Americans have been indoctrinated into the centralist-ideology imposed on us by not-so-innocent advocates of such a political belief system.

Let me state this clearly: the US Constitution does not grant to the US S CT the power to interpret the Constitution in contradiction to the terms of the Constitution, and it does not strip the powers of the States to actively arrest and resist tyrannical federal actions. The US S CT can no more violate the Constitution than the Legislative and Executive branches can.

What sense does it make that the US S CT is bound by an oath to support and defend the Constitution and then has the power to interpret it however the heck they want to? Do you think our founders were so near-sighted and unlearned that they would have given to the US S CT this unchecked and unlimited power in the very document that states its purpose is “to secure the blessings of liberty”?

The framework of our Confederate Republic was clearly understood by those who advocated its ratification, namely, Alexander Hamilton, James Madison and John Jay: the writers of the Federalist Papers. These are the men who some today would argue advocated for a centralist government, reducing and eliminating the power of the states to resist and arrest federal usurpation of power.

Obviously, these advocates of centralism would not have you aware of what these founders said on the subject, nor would they like to admit that the US Constitution formed a league of states, which was acceded to by each independent and sovereign act of the states, and which secured the right and duty of the states to actively guard against the encroachments of the federal government they created for the security of the blessings of liberty.

It must first be admitted that the US Constitution never gave to the US S CT the power to substitute their will for the intentions of the Founders of the Constitution. This is easy to prove. Alexander Hamilton admits this in Federalist Paper 78:

“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

Here, Hamilton points out the fact that, in our Confederate Republic, the US S CT MUST apply the Constitution to all federal laws as intended by the Founders. They are NOT to place their will above the will of those who framed and acceded to the US Constitution.

To suggest that the US S CT has the power to alter, change or amend the Constitution at will is to place the US S CT above the Constitution: they can no more do this than the legislative branch can pass an unconstitutional law and the executive branch can carry out an unconstitutional law. Or as Hamilton puts it, putting their will above the Constitution will “equally be the substitution of their pleasure to that of the legislative body.” Neither is acceptable and neither is constitutional.

One cannot credibly and correctly argue that whatever the US S CT says goes. I should not even have to restate this maxim, but in America, it has been held true that any unconstitutional act is null and void. This applies to the US S CT as well.

Thus, the question becomes, what can and what must the states do when all three branches of the federal government ignore the Constitution and trample over the intents of its foundational principles? The authors of the Federalist Papers give us some guidance on the subject.

In Federalist Paper 16, Hamilton explains in detail the states’ right to actively resist federal tyranny and usurpation of power. Listen to Hamilton:

“The plausibility of this objection [that the states will at any time obstruct the execution of federal laws] will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.

“But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights . . . Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY.” (Emphasis added.)

Here, Hamilton clearly recognizes the states’ ability to actively intervene against the federal government “in cases of a tyrannical exercise of the federal authority.”

Hamilton also expounds upon the natural protection that the new system of the US Constitution provides, in that states will not so easily and readily interfere with federal action when such interference must be made actively and openly against the federal government. Certainly, where at least three-fourths (the percentage needed to amend the Constitution) of the states disagree with the State actively resisting the federal government, that State will consider the risks and costs to be too great to carry out and thus would not resist actively; instead, that State would use its VOICE and not its ARM to communicate its discontent.

However, as told by Hamilton, “IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY,” the states most certainly would use their ARM to arrest such tyrannical actions.

Hamilton describes the use of this ARM of the States in Federalist Paper 26:

“[T]he State legislatures, WHO WILL ALWAYS BE NOT ONLY VIGILANT BUT SUSPICIOUS AND JEALOUS GUARDIANS OF THE RIGHTS OF THE CITIZENS AGAINST ENCROACHMENTS FROM THE FEDERAL GOVERNMENT, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent . . . [T]he people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.” (Emphasis added.)

Hamilton goes so far as to say, if the federal government has usurped its powers and the people of the states feel it necessary, the states should secede from the union, dividing “themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person.”

This is not I stating this: this is one of the most well-known Founding Fathers in American history. Hamilton further expounds upon this states’ right and duty to check federal usurpation of power in Federalist Paper 28. He says,

“Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and THESE [THE STATES] WILL HAVE THE SAME DISPOSITION TOWARDS THE GENERAL GOVERNMENT. The people, by throwing themselves into either scale, will infallibly make it preponderate. IF THEIR RIGHTS ARE INVADED BY EITHER, THEY CAN MAKE USE OF THE OTHER AS THE INSTRUMENT OF REDRESS. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!” (Emphasis added.)

Very clearly, Hamilton sees the brilliance of our Confederate Republic system of government, whereby the states can check the federal government and that where “rights are invaded” by the federal government, the people “can make use of the [states] as the instrument of redress.” Hamilton continues in this discussion, saying:

“It may safely be received as an axiom in our political system, that THE STATE GOVERNMENTS WILL, IN ALL POSSIBLE CONTINGENCIES, AFFORD COMPLETE SECURITY AGAINST INVASIONS OF THE PUBLIC LIBERTY BY THE NATIONAL AUTHORITY. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, THEY CAN AT ONCE ADOPT A REGULAR PLAN OF OPPOSITION, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and UNITE THEIR COMMON FORCES FOR THE PROTECTION OF THEIR COMMON LIBERTY.” (Emphasis added.)

Even as expressed by the centralists’ hero, Alexander Hamilton, the states were not left impotent regarding federal tyranny and were not stuck with the fruitless redress only through the US S CT. Hamilton clearly suggests that the states have the sovereign and active power to arrest the exercise of federal tyranny.

Again, the question here is not, does the federal government have the power to act within its delegated powers, for we all would concede that the federal government has the power to do what we the people in the several states delegated to the federal government.

We acknowledge, as Hamilton expresses in Federalist Paper 27, “the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land.” Rather, the question is, what are the states going to do in response to the usurpation of powers that have been tyrannically taken by all three branches of the federal government? The question is, what are the states going to do when the federal government has passed, upheld and executed laws that are not “enumerated and legitimate objects of its jurisdiction”?

After all, such laws are by definition NOT the supreme laws of the land and consequently, the people of the states and the states themselves are not bound to them. (Of course, this necessarily implies that we the people understand the Constitution, the principles of our government and the true character and nature of our government.)

Are the people of the states to sit back and let the federal government trample over the rights, principles and structure of our Confederate Republic? Is every State to shirk its responsibilities and duties to actively protect, preserve and defend the freedoms of its sovereign (the people of the State) against federal tyranny?

Are the people of the states to live and be governed in tyranny with the only hope that we will hopefully elect a President who will hopefully appoint a US S CT justice to the bench so that the Court can hopefully hear a case on the direct issue so that the Court will hopefully rule the correct way? Nonsense!

The time has come that the people of the several states of America wake up to the truth of their history: they are citizens of independent and sovereign states; the US S CT is NOT the final arbiter in matters of freedom; the federal government is not the source of our freedom; the states have the duty to resist the encroachments of federal usurpation; and freedom can be restored when the Confederate Republic is restored.

To that end, we must not fear Sotamayor; rather, we should insist that she fear the states–and obey the Constitution!

© 2009 Chuck Baldwin – All Rights Reserved

In Marbury v. Madison (1804), John Marshall argues that the Supreme Court ought to have the authority to determine the constitutionality of laws which come before the court. Since the judges must apply the laws to particular cases, they must necessarily “expound and interpret” those laws.

Furthermore, since the Constitution is superior to an ordinary act of the legislature and cannot be annulled by such an act, the judges-when faced with a law contrary to the Constitution-must strike down the law so as to uphold the Constitution.

Otherwise, the power of the Constitution itself would be nullified, and the courts would be forced to uphold the very injustices against which the Constitution was meant to protect.

If, for instance, Congress had passed an ex post facto law, and an individual were prosecuted under it before the court, it would defeat the purpose of the Constitution if the court were forced to convict the individual under the law. Marshall emphasizes that court justices take an oath to support the Constitution, and it would thus be immoral for them to violate what they have sworn to support.

Those who insist that the courts do not consider the constitutionality of laws in their decisions are in effect insisting that the justices violate their oaths. Furthermore, “the judicial power of the United States is extended to all cases arising under the Constitution,” and thus it would absurd for the courts to examine a case arising under the Constitution without examining the instrument under which it arises.

In his letter to Judge Spencer Roane, Thomas Jefferson argues against exclusive judiciary construction of the Constitution; such exclusive power of constitutional interpretation would, according to Jefferson, undermine the principle of checks and balances-since it would allow the judiciary department to prescribe rules for the government of the others.

If the judiciary has sole power of constitutional interpretation, then 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.”

Jefferson instead recommends that each department be truly independent of the others and have the right to decide for itself the Constitution’s meaning in cases submitted to its action-especially in those cases where it is to act ultimately and without appeal.

Marshall and Jefferson present two diametrically opposed views of the nature of constitutional interpretation, and it is regrettable that Marshall’s view has been virtually uncontested in the United States during the past century; Jefferson was correct to warn that giving the Supreme Court sole ultimate power to interpret the Constitution would shift supremacy from the text of the Constitution to the subjective wishes of Supreme Court justices.

Perhaps it is time to give each branch of government the sovereignty to judge for itself what is constitutional, and the ability to act as a check against misinterpretations by the other branches.

Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.

“Every school child in America should be required to read the Bible.”

At that point, I stopped clapping for Patrick Buchanan, who was speaking in Kansas City during his failed 2000 presidential bid. The government shouldn’t force people to read books, even the Bible.

There is some truth to the liberal insult that conservatives want to create a Christian theocracy. Social conservatives tend to overemphasize religion when talking about social issues like abortion and gay marriage.

People who support limited government are turned off by the Republican Party because of the religious overtones. They don’t want a government run by preachers.

Religious right preachers sound silly when they proclaim that natural disasters are a result of God’s wrath over abortion and gay marriage. A more sound explanation for opposition rests in the distinctly Western idea of federalism.

Prior to Roe v. Wade, New York, California, Colorado and Hawaii had legalized specific abortion procedures. The plaintiff, Norma McCorvey, sued to have an abortion in Texas, a state that did not allow the procedure.

Abortion is not an inalienable right guaranteed in the U.S. Constitution. The Tenth Amendment requires that this issue be solved by state governments.

The U.S. Supreme Court is supposed to interpret the law, not create it. By legalizing abortion across the country, the court overstepped its boundaries by taking on the role of the legislative branch.

This dangerous precedent of judicial fiat has spilled over into state supreme courts. The Massachusetts Supreme Court forced the Massachusetts legislature to recognize gay marriages in 2004.

Not to be outdone, the California Supreme Court invented the right for Californians in 2008, despite a previous statewide vote defining marriage only between one man and one woman. California voters overturned the court in November by approving a state constitutional amendment barring future gay marriages in the state.

That won’t be enough to stop the runaway California judiciary. The same court is reviewing case law to find any reason to once again overturn the will of the people.

The Founding Fathers did not create a system of government that gives judges the right to trump the will of the majority. A vote of the people should be worth more than the printed ballot paper.

The biggest worry isn’t the one percent of Americans who voted for Buchanan who want a Christian theocracy. It’s the vast array of leftwing politicians, activists and donors who want to create a judicial monarchy.

The purpose of law is to protect the rights of individuals against the excesses of the state. An oppressive judicial system punishes individuals by taking away their freedoms, starting with the right to vote.

Sensible people across the political spectrum can support a return to federalism by allowing citizens in each state the right to determine social issues. Some states will legalize marijuana and prostitution while others will ban abortion and gay marriage.

Those who don’t like the laws can move to a different state. That’s a much better system than one where the laws for the entire country are re-written after every judicial selection.

Ryan Cooper lives in Springfield. He can be reached at ryankcooper@gmail.com.