Madison in Retirement: The Judiciary
After he retired from public office in 1816, Madison remained interested in public affairs, both nationally and in his home state of Virginia. Writing about the judiciary, in a September 2, 1819, letter to Judge Spencer Roane, who was serving on the Virginia Court of Appeals, Madison responds to Roane's letter expressing opposition to a recent Supreme Court ruling. In that case, McCulloch v. Maryland, the Court ruled regarding the right of a state to tax the Bank of the United States. Read Madison's reply to Judge Roane.
- What is Madison's view of the decision rendered by the Supreme Court in McCulloch v. Maryland?
- How does Madison respond to Chief Justice John Marshall's interpretation of "the necessary and proper" clause in his justification for the Court's decision?
- Why does Madison express the wish to see the reasoning of all the justices? How does his reasoning align with the frequent argument that the most important decisions should be unanimous to give them greater authority?
In 1823, Madison wrote to Jefferson on the judiciary, reaffirming his original opinion expressed in Federalist 39 that a tribunal was necessary "to prevent an appeal to the sword." He takes issue with some decisions of the Supreme Court, saying, "At one period the Judges perverted the Bench of Justice into a rostrum for partizan harangues." He goes on to write: "…if no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself."
- Would you say that Madison, in his later life, changed his views on the importance of an independent judiciary? Give evidence from this and other documents to support your position.
- Under what circumstances would Madison have supported a constitutional amendment to limit the Supreme Court? Who, according to Madison, was the "ultimate arbiter"?
- Explain to what extent Madison's comments on the judiciary are still germane to discussions of the role of that branch today.