Letter from Thomas Jefferson to William Torrance (1815)

Image: Rembrandt Peale. Official Portrait of Thomas Jefferson, 1800. Public domain, from the White House Historical Association
Jefferson argued that when institutions disagreed over constitutional questions, the prudence of public officials or the weight of public opinion would lead to compromise and avoid constitutional crises. Do you find his position too optimistic? Can you think of important political issues that do not raise constitutional questions that support his position? Even if his position was optimistic, was it nevertheless constitutionally justified? If members of Congress and the president accepted and argued for Jefferson’s position today, how would it change our politics and public deliberation over constitutional questions? Would the American people know more about the Constitution if they understood that political officers also have the authority to interpret the Constitution?
Compare Jefferson’s position on the role of the Court to Ginsburg’s, Thomas’, and Breyer’s. Are they similar? Would Jefferson have been persuaded by Scalia’s argument that originalism can reconcile judicial power with representative government?

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In this letter to William Torrance, Jefferson criticized judicial supremacy, noting that the Constitution nowhere gave the courts such power. Elsewhere, in a letter to William Jarvis written in 1820, he wrote that judicial supremacy would “place us under the despotism of an oligarchy.” Jefferson’s initial alternative to judicial supremacy was a form of departmentalism—the idea that each branch of the government had the authority and duty to interpret the Constitution. For Jefferson, this was particularly true for questions arising within the constitutionally delegated power of a branch. He admitted that this could lead to inconvenience when institutions disagreed, but he believed that prudence and public opinion “will generally produce accommodation.” If only one branch was to have final interpretive authority, Jefferson wanted to lodge that power with the legislature. This position, he argued, “merits respect for its safety” since, unlike the Supreme Court, the legislature was subject to direct political control by the people.

—Joshua Dunn

Source: Thomas Jefferson to W. H. Torrance, June 11, 1815, Library of Congress, Manuscript/Mixed Material, https://www.loc.gov/item/mtjbib022064/.

. . .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 branches. Questions of property, of character, and of crime being ascribed to the judges, through a definite course of legal proceeding, laws involving such questions belong, of course, to them; and as they decide on them ultimately and without appeal, they of course decide for themselves. The constitutional validity of the law or laws again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves also whether, under the Constitution, they are valid or not. So also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, and equally without appeal or control from its co-ordinate branches. And, in general, that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other co-ordinate authorities. It may be said that contradictory decisions may arise in such case and produce inconvenience. This is possible, and is a necessary failing in all human proceedings. Yet the prudence of the public functionaries, and authority of public opinion, will generally produce accommodation. Such an instance of difference occurred between the judges of England (in the time of Lord Holt)1 and the House of Commons, but the prudence of those bodies prevented inconvenience from it. So in the cases of Duane and of William Smith of South Carolina, whose characters of citizenship stood precisely on the same ground, the judges in a question of meum and tuum2 which came before them, decided that Duane was not a citizen; and in a question of membership, the House of Representatives, under the same words of the same provision, adjudged William Smith to be a citizen.3 Yet no inconvenience has ensued from these contradictory decisions. This is what I believe myself to be sound. But there is another opinion entertained by some men of such judgment and information as to lessen my confidence in my own. That is, that the legislature alone is the exclusive expounder of the sense of the Constitution, in every part of it whatever. And they allege in its support, that this branch has authority to impeach and punish a member of either of the others acting contrary to its declaration of the sense of the Constitution. It may indeed be answered, that an act may still be valid although the party is punished for it, right or wrong. However, this opinion which ascribes exclusive exposition to the legislature merits respect for its safety, there being in the body of the nation a control over them, which, if expressed by rejection on the subsequent exercise of their elective franchise, enlists public opinion against their exposition, and encourages a judge or executive on a future occasion to adhere to their former opinion. Between these two doctrines, everyone has a right to choose, and I know of no third meriting any respect.

  1. 1. Lord Chief Justice John Holt (1642–1710).
  2. 2. Latin for “mine” and “thine.”
  3. 3. William Duane (1760–1835) and William Loughton Smith (1758–1812) were both born in the United States but spent considerable time in their youth in Europe, which raised questions about their citizenship.
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