Jefferson modified his 1803 position (impeachment on address) to the 1807 and 1820
presumption against lifetime tenure, but he retained the idea—dating back to 1783-- that
the executive should be involved.
The participation of the executive raises the question of coordinate review. Under
this theory, often called departmentalism, each department of government may interpret
the Constitution regarding questions within its own constitutional sphere. Jefferson
believed that Marbury, for example, was wrong because the Constitution had entrusted
decisions about appointments and removals to the president.
But it is important to note
that Jefferson had embraced coordinate review before 1803. In an undelivered draft of his
First Annual message, Jefferson declared the Sedition Act a “nullity” and explained his
power as president to do so
To make each [department] an effectual check, it must have a right in
cases which arise within the line of it’s proper functions, where, equally
with the others, it acts in the last resort & without appeal, to decide on the
validity of an act according to it’s own judgment, & uncontrolled by the
opinion of any other department.
Rather then giving judges the final say in interpreting the constitution, this view allows
each to be supreme within its own sphere. Judicial review, by contrast, was despotism:
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 spheres
of action, but for the legislature and executive also in their spheres, would
make the judiciary a despotic branch.
To be sure, Jefferson acknowledged that departmental interpretation would lead to
conflict, but he was confident that such conflict would be solved by the future elections.
We have accordingly, in more than one instance, seen the opinions of
different departments in opposition to each other, & no ill ensue. The
64
Jefferson to Judge Spencer Roane, September 6, 1819, Peterson, 1425-8.
65
As quoted in David N. Mayer, The Constitutional Thought of Thomas Jefferson, (Charlottesville, VA:
University Press of Virginia, 1994), 270.
66
Jefferson to Abigail Adams, 11 September 1804, The Complete Correspondence Between Thomas
Jefferson and Abigail and John Adams, ed. Lester J. Cappon (Chapel Hill: University of North Carolina
Press, 1959), 279.
29
Convention