The American Presidency

Jackson- Presidential Reactions

Executive reactions seem to suggest that the question of judicial interpretation did not end with Marbury v. Madison. Presidents Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt would question the practice of judicial review by: a) arguing that their oath to support the Constitution implied a right of interpretation, b) questioning the court's ability, as a non-elected body, to objectively represent the interests of the People, and c) arguing that judicial review was a "check" that somehow trumped all others in the system of balances.

President Jackson was among the first Presidents after Jefferson to seriously question the Court's right to judicial interpretation.

In one of the strongest claims against judicial authority, Jackson noted the following:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve. ³⁴

This is not a simple rebuke of the court's authority of interpretation: The sheer length, repetition, and specificity with which Jackson refutes judicial review demonstrates his frustration with the court's emergent role. Jackson argues that each branch of Government and public officer has a duty to interpret the Constitution "as he understands it." Jackson, then, implicitly links the Oath of public office to the act of interpretation! Equally striking, he suggests that the "opinion" of the judges has no more authority than the "opinion" of the Executive or Legislative branches. Using the word "opinion" seems to undermine the objectivity with which Supreme Court decisions were, in theory, supposed to display.

Secondly, Jackson also states that Constitutional decisions are only binding and authoritative when "the acquiescence of the people and the States can be considered as well settled." ³⁵ If the Court's ruling, then, does not represent the will of the people, Jackson believes it is not authoritative! As a non-elected branch, this argument has particularly powerful implications: If the court isn't elected by the People, then how can we ensure that it represents their interests?

In perhaps the most interesting twist of Jackson's statement, he actually uses the Court's ruling to support his argument. He notes that by "taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that… the law is in accordance with the Constitution." ³⁶ By using his interpretation of the court's ruling, Jackson actually legitimizes, on some level, the court's authority on this matter. Moreover, this reveals that the court's interpretations may not always be straightforward themselves. Thus, if by words he rebukes judicial supremacy, then by action he appears to endorse it. At the very least, while he was always deferent to the Supreme Court, Jackson did defer to the Constitution. He even mentioned the word Constitution, or a version of it (i.e. Constitutionality), over twenty times in his bank veto speech.

Jackson's arguments against Judicial review and authority articulated a set of frustration that future Presidents would echo and elaborate upon.