“A Mere Thing Of Wax:” A Random Note On Marbury v. Madison

June 4, 2013, 6:06 pm

Chief Justice Marshall
220px John Marshall by Henry Inman 1832

One of the delights of reading Marbury v. Madison is the logical bind that John Marshall puts Thomas Jefferson. Marshall will give Jefferson what he wants in the case, but only if Jefferson concedes that the Supreme Court can decide the constitutionality of laws, something Jefferson resolutely did not want to do. Writing to Abigail Adams after the decision, Jefferson said:

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 branch

President Jefferson
220px Thomas Jefferson by Rembrandt Peale 1800

He did not change his mind, writing in 1820:

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

The constitution, would be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”

Judicial review had been discussed and used in the years before the 1803 ruling, but it was Marbury v. Madison that really laid the groundwork for the Supreme Court’s domination of constitutional questions.

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