Jefferson and Judicial Review

Cromwell: I have evidence that Sir Thomas, when he was a judge, accepted bribes.
Duke of Norfolk: What? Goddammit, he was the only judge since Cato who didn't accept bribes! When was there last a Chancellor whose possessions after three years in office totalled one hundred pounds and a gold chain?
--A Man for All Seasons

Interesting talk by Tom DiLorenzo on how the Constitution has been dismanteled over the years. I found the real nugget of this discussion at ~21 minutes on the legitimacy of judicial review.

Judicial review is a principle established from the Marbury v. Madison ruling. It states that the Supreme Court has the power to determine whether a law is constitutional or not. This ruling is typically held up among freedom lovers as wholly consistent with natural law.

Apparently, Thomas Jefferson did not see it that way. Citing an 1819 letter, DiLorenzo notes that Jefferson discounted the Supreme Court's claim of judicial review. Jefferson did not view the Supreme Court's opinion of constitutionality as any more legitimate than that of the legislative or executive branch. Or of the people in the states.

Jefferson viewed the Tenth Amendment as the cornerstone of the Constitution. The Tenth Amendment states that all powers not expressly delegated to the federal government are retained by the people and the states. DiLorenzo suggests that the Jeffersonian view was that it was insanity to rest the interpretation of law on the shoulders of 5 lawyers given lifetime high court appointments. Would the colonists fight a bloody revolution only to put the fate of liberty in the hands of five tenured people on the high court? Particularly when it was well known that courts throughout history had proven themselves generally incapable of remaining disinterested judges of the law?

This is an OUTSTANDING observation. I have long considered the framers' 'assumption' that the high court would provide a last and durable line of defense for the Constitution's limited government design as deeply flawed--with benefit of hindsight, of course.

But perhaps this is because that was not the framers' assumption at all. The Constitution itself does not grant the Supremene Court power to interpret constitutionality. The opinion of chief justice John Marshall (who subsequently demonstrated in his rulings to be partial to the Hamiltonian big government view) in Marbury v. Madison did that.

It can certainly be construed from the Constitution as written that all stakeholders had jurisdiction on what constituted constitutionality (!). And if people in various states felt that law was being unjustly interpreted by the federal government, then it was their right to walk away from the union.

Rather than depending on an interested court, which history suggested would be likely at some point, the people would retain the ultimate power themselves.

Yes, indeed.