Jefferson's warnings about judicial consolidation, analysis of Federalist #78, and why judges should exercise judgment rather than will in interpreting the Constitution.
In Federalist #78, Alexander Hamilton argued that the judiciary would be the 'least dangerous' branch of government because it had neither the sword nor the purse — only judgment. The courts could neither enforce their decisions nor fund them. They depended entirely on the other branches for implementation.
Jefferson was deeply concerned about the power of the judiciary. He warned that the federal courts, if unchecked, would gradually usurp the powers of the states and consolidate all governmental authority in Washington. His prediction has proven remarkably prescient.
Joseph Story, the generally recognized expert on American Constitutional Law in the early republic, established the first and fundamental rule of interpretation: 'The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties who drafted them.'
Jefferson's rule of interpretation was equally clear: 'On every question of construction of the Constitution let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.'
The doctrine of judicial review — the power of courts to strike down laws as unconstitutional — was established in Marbury v. Madison (1803). While this power is now universally accepted, the Founders debated whether courts should have this power at all.
The danger of judicial activism is that it transforms the judiciary from a body that exercises 'judgment' into one that exercises 'will.' When judges substitute their own policy preferences for the original meaning of the Constitution, they undermine the democratic foundation of our republic.
The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.
On every question of construction let us carry ourselves back to the time when the Constitution was adopted... conform to the probable one in which it was passed.