Repel the 19th amendment hashtag

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Jefferson had much to say about what he saw as a tyranny of the judiciary at a time when the judiciary had little to do because it hadn't yet assumed the authority to perform judicial review of controversies. After Marbury v. Madison, 5 U.S. 137 (1803), the Jeffersonian democrats increased their opposition to a judiciary which had created an authority out of whole cloth without constitutional provision. This fact alone probably informed Jefferson and his democrats to propose novel ways to achieve constitutional equity about the matter by suggesting that all courts, including the Supreme Court, must involve the "people" factor that comes from juries. But, their efforts were all for not. Nonetheless, by 1819, Jefferson described in a letter to Judge Spencer Roane, that judicial tyranny made the Constitution "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please." So, it appears clear to me that Jefferson weighed in on the age-old controversy of originalism, by favoring in this case, at least, the original understanding of the Constitution for the United States of America, Article III. His opposition to the U.S. Supreme Court's assumption of authority without constitutional provision is the definition of original intent, meaning and understanding.

Abolitionists throughout the United States, but especially in the industrialized northern states, supported states' rights because their states were the first in the nation to enact anti-slavery statutes. Would you be happier knowing that the federal government had overruled such statutes?

If you're not happy at choosing between Trump and Clinton then you'll hate our present political situation...

The Jefferson vs. Marshall controversy was between two sides within the common law framework. Neither denied law based on gradually-evolving precedent, which is to say what the right likes to deride as "a living constitution" today. Jefferson did oppose the Supreme Court's power grab in claiming the authority of judicial review over cases in the other branches of government, for which there was no precedent and thus it's of no relevance to the "originalist" vs. "living"/"common law" debate. Whether or not to overturn the precedent created by Marshall 200 years after the fact, precedent that he was tacitly allowed to create by Jefferson's efforts to block it failing through the requisite legal channels, would be.

For the record, later Democratic-Republicans like Henry Clay would argue Jefferson was wrong in his judgment here. For the simple reason that the judiciary were the weakest branch of government by a pretty humongous margin before Marshall's coup. Elevating their power presented a check on the ever-expanding power of the executive, creating tension that let the legislature and thus the most directly democratic branch of government retain its primacy for much longer. Sans that, you likely would have seen the LBJ/Nixon-era "imperial executive" much sooner, with the Jackson presidency.


Yes, this would have been a positive development from Jefferson's opposition. But expanding jury nullification to the Supreme Court is a far cry from originalism, as democratization not laid out in how the Constitution describes the federal legislature.

Last edited by Pravda on 13 Oct 2016, 5:08 pm, edited 1 time in total.

We allow corporations to exclude contraceptive coverage from their female employees' health insurance plans based on the idea that corporations are people with religious views, and birth control pills are murder.
Is repealing the 19th really that much crazier? We're becoming a nation of morons and lunatics, anyway.

I didn't describe the Constitution as precedential, but, instead, as authoritative. Its intent, meaning and understanding didn't include judicial review. But, the Court created review without the authority to do so. Strangely, though, Marbury ended up becoming precedential. Hmm.

Ike the 19th amendment and would prefer to keep it.
If somebody wants to get rid of the 21st amendment, I'm all for that.

Jefferson, as someone who idolized the Anglo-Saxon common law system, would have described its interpretation as precedential. It being a strictly authoritative document that is only to be interpreted based on its meaning in the late 18th century, all precedent to interpret it in light of later changes to society, would be a very weird idea to anyone living at that time.


This is true. Even Henry Clay, who viewed it as the right decision with the power of hindsight, would have described the legal authority of Marshall to do it at the time as ambiguous at best.


Because it was a coup backed up through official, legal channels which was not successfully defeated by efforts to halt it. So, it became a key part of our legal precedent. The battle at that time was not one of original-intent vs. precedent, the battle over whether or not to overturn it is.

I agree completely. But the point that Jefferson was decidedly arguing original intent, meaning and understanding should be obvious, then, at least as a legalistic strategy.

He was arguing specifically that Marshall didn't have the authority to do it. Fearing for legal systems being decided on whim is not specifically an argument for "original intent" or a break from the common law precedential system Jefferson otherwise praised, it's an argument against decisions being made without actual legal basis. There was no precedent for Marshall's seismic shift in the Court's authority, it only went through because the lower circuit courts at the time protected him.

Jefferson was also ambiguous on the Constitution itself for similar reasons, since it represented a dramatic centralization and a shift from state-level common law precedent in Virginia going back over a century. He only tepidly agreed to its ratification with the introduction of the Bill of Rights.

I would argue, like Henry Clay, that the Constitution and Marshall's coup were both necessary innovations breaking from an otherwise precedential system. This precedential system itself bears no resemblance to modern "original intent" talk, which is itself an innovation.

Isn't there something suspicious about the first case of any court where there would be no precedent?

Yes, the Court's resolution about judicial review has worked well, but there is also something very appealing to Jefferson's idea of appelate and Supreme Court juries. No constitutionally guaranteed rights should ever be restricted without the consent of the people. Juries would resolve that concern.

This didn't really exist in America. Colonial laws were mostly based on extrapolating from prior British laws, post-revolutionary American laws were mostly retained colonial laws and extrapolations therefrom. In fact, the revolution was partly waged because parliamentary edict was interfering with century-old common law decisions in Massachusetts. Related to things like search and seizure, and dues on certain goods. Jefferson's phrasing has become the most-quoted version, talking about "our traditional rights as Englishmen."

There were breaks with this retainment. The Constitutional Convention itself was one, Marshall's efforts were another. I'd argue the former was necessary to keep the states from being divided against each-other. The latter put the court at loggerheads with the increasingly powerful executive, which let the legislature retain its primacy for a century and a half longer than it otherwise likely would have.


Agreed, but extending the jury system to the higher courts is an effort at democratization. It's also not really "original intent."

Not original intent. But, an interesting idea. I kinda like it.

FYI - this was created by a fake trump supporter account, backed up by a 2nd person and then Democrats made it trend with 3k tweets over 1 hour vs. the podesta emails which had 20k in 30 minutes. You could argue liberals got punk'd or it was yet another attempt to hit Trump on his home ground when it comes to social media.

At the moment twitter is censoring and pushing tags down the trend ladder and creating a lot of new ones to put in their place.

No candidate would want to deprive anyone of their vote because it's one less voting demographic for them.
You'd have to be nuts to think this was a legit tag.

Shocking to imagine hordes of his supporters literally wanting to deprive people of the right to vote. Never mind the ones who have said it before.

This strikes me as analogous to getting outraged about the comment section on youtube.