"The question whether the judges are invested with exclusive
authority to decide on the constitutionality of a law has been
heretofore a subject of consideration with me in the exercise of
official duties. Certainly there is not a word in the Constitution which
has given that power to them more than to the Executive or Legislative
—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
"But the Chief Justice says, 'There must be an ultimate arbiter
somewhere.' True, there must; but does that prove it is either party?
The ultimate arbiter is the people of the Union, assembled by their
deputies in convention, at the call of Congress or of two-thirds of the
States. Let them decide to which they mean to give an authority claimed
by two of their organs. And it has been the peculiar wisdom and felicity
of our Constitution, to have provided this peaceable appeal, where that
of other nations is at once to force."
—Thomas Jefferson to William Johnson, 1823. ME 15:451
"But, you may ask, if the two departments [i.e., federal and state]
should claim each the same subject of power, where is the common umpire
to decide ultimately between them? In cases of little importance or
urgency, the prudence of both parties will keep them aloof from the
questionable ground; but if it can neither be avoided nor compromised, a
convention of the States must be called to ascribe the doubtful power
to that department which they may think best."
—Thomas Jefferson to John Cartwright, 1824. ME 16:47
"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
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51
"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
"In denying the right [the Supreme Court usurps] of exclusively
explaining the Constitution, I go further than [others] do, if I
understand rightly [this] quotation from the Federalist of an opinion
that 'the judiciary is the last resort in relation to the other
departments of the government, but not in relation to the rights of the
parties to the compact under which the judiciary is derived.' If this
opinion be sound, then indeed is our Constitution a complete felo de se
[act of suicide]. For intending to establish three departments,
coordinate and independent, that they might check and balance one
another, it has given, according to this opinion, to one of them alone
the right to prescribe rules for the government of the others, and to
that one, too, which is unelected by and independent of the nation. For
experience has already shown that the impeachment it has provided is not
even a scare-crow . . . 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 please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
"This member of the Government was at first considered as the most
harmless and helpless of all its organs. But it has proved that the
power of declaring what the law is, ad libitum, by sapping and mining
slyly and without alarm the foundations of the Constitution, can do what
open force would not dare to attempt."
—Thomas Jefferson to Edward Livingston, 1825. ME 16:114
"My construction of the Constitution is . . . that each department is
truly independent of the others and has an equal right to decide for
itself what is the meaning of the Constitution in the cases submitted to
its action; and especially where it is to act ultimately and without
—Thomas Jefferson to Spencer Roane, 1819. ME 15:214
What is Thomas Jefferson's position on the concept of judicial
review? Review the first quotation. What argument(s) does he present?
Does Jefferson agree or disagree with Chief Justice Marshall about
the need for an "ultimate arbiter" to resolve disputes? Who does
Jefferson think should be the ultimate arbiter?
According to Jefferson, how should disputes between the federal and state government be resolved?
In the seventh quotation, Jefferson says, "This member of the
Government was at first considered as the most harmless and helpless of
all organs." Who is he referring to when he says "this member of
What does Jefferson fear will happen if the Supreme Court of the
United States is given the power of judicial review? Include excerpts
from the quotations in your answer.
Based on what you have read, how did Jefferson feel about the Supreme
Court's decision in the case of Marbury v. Madison? How would he have
decided the case? Provide support for your argument.
Chief Justice John Marshall and President Thomas Jefferson had
different views on the power of the federal government and the power of
judicial review. Create the dialogue of a conversation between the two
Do you agree with Marshall or Jefferson? Should the Supreme Court of
the United States have the power of judicial review? Why or why not?