What is perhaps most interesting about the benefits Madison expected from a bill of rights was what he left out. He appears to have overlooked the possibility that, if the executive or legislature did abuse its power and violate one of the individual rights traditionally protected by a bill of rights, aggrieved citizens could find redress in the courts.
Indeed, Madison had written to Jefferson that, in such cases when the majority of people exercised their will in a tyrannical manner, the popular will could not be controlled by “an appeal to any other force within the community” (emphasis added). It was Jefferson who supplied the missing consideration: “In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.” If the judiciary were made sufficiently independent, thought Jefferson, then its most eminent members would be able to withstand the popular current whenever it abused the rights of some hapless minority.
Like so many of Jefferson’s other arguments on behalf of a bill of rights, this consideration was included in Madison’s address to the First Congress when he introduced the measure to add amendments to the Constitution. Nonetheless, it is not clear if Madison (and many other Founders) ever fully appreciated the potential of the courts to act as the defender of individual rights. Indeed, in the earliest controversies surrounding alleged unconstitutional measures—such as the Alien and Sedition Acts of the Adams administration—the opponents of these alleged abuses did not appeal to the courts for redress. They took their fight to the state and federal legislative chambers.
On several occasions throughout the debates in the Constitutional and Ratifying Conventions, Madison and others indicated that they expected the courts would be empowered to strike down unconstitutional measures. But they primarily had in mind the courts’ authority as mediator between state and federal powers. They thought the courts could strike down federal laws when they encroached on the prerogatives of the states, and strike down state laws when they encroached on the prerogatives of the federal government. This understanding of judicial review would make the courts the primary referee between state and federal powers (the subject of what would become the 10th Amendment), but the courts were not originally tasked with defining and protecting individual rights (the subject of the other nine).
“In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.”Thomas Jefferson