They're meant to sit in isolation to examine laws that have been passed or actions of the executive and to give their opinion about whether it is in resonance with the principles of the Constitution and the provisions of the Bill of Rights or whether it so deviates from our constitutional law that it is probably unconstitutional that branch should Far and Away be the weakest in my time there were 6 members of the Supreme Court in your time 9 there is no principle of a republican form of government that would enable 9 unelected unaccountable and unimpeachable beings to have as much power as your current president says they have it is not a great privilege to name a Supreme Court justice it's one of many many many things that a president does and it should be well below the top 10 or even top $100.00 but you do acknowledge that it is an important choice or yes I chose 3 justices of the Supreme Court and more than 20 judges and justices in our federal system and I did what I could to provide geographic representation from all of the country and to make sure I chose people who had a a view of our republic that squared reasonably with my own. But I didn't regarded as the the seat of action I regarded as a very distant cousin of the 2 main branches of our national government principally the legislative and secondly the executive and so how the Supreme Court is has gained as much authority and central of the as it hasn't in your time is mystifying to me but I can tell you this it's not good for people to be dependent upon 9 unelected and unaccountable beings I believe I understand your position Mr Jefferson that were you alive today what would you do to curb the power of the judicial branch Well a part of this I'm afraid is this settled by my cousin John Marshall that gloomy malignity he was named by Adams to be the chief justice of the Supreme Court during the the last hours of the Adams administration he went on to serve for 34 years and he saw Twista Fayyad his opinions as to make us a much more centralized national system than we had intended than the founding fathers had intended in Philadelphia and by the time it was done so much was now settled that it would be very hard to restore the primacy of individual states and to lower the tone of the Supreme Court I see the Supreme Court as as the court of highest appeal but also a group of advisors who say this seems constitutional we're not so sure about this we invite the legislature to take another look at it Mr President I'm sorry but you cleft me a bit gloomy as a says in today if it sounds as if we're doomed once you name a Supreme Court justice and confirm him he serves for a life that can be 40 or even 50 years in your time that's that's 2 generations that's absolutely a violation of Republican theory thank you very much Mr Jefferson You're most welcome sir. Support comes from the last buffalo of Texas featuring high plains adventures and a lodge which can be reserved for events more information at the last buffalo dot com On this week's On the Media protect your source is an unshakable canon of journalism but for one reporter the misdeeds of her source outweighed the code and she outed him to the f.b.i. The person was doing significant damage to innocent people and I wasn't willing to sit there and watch that continue to happen on this week's. Sunday evening at 6 Central. To the Thomas Jefferson. Weekly conversation with President Thomas Jefferson Mr Jefferson as portrayed by the award winning humanities scholar and author. Cross for me. Good day to you. Was a pleasant Mr Jefferson but I have a serious subject to discuss with you this week what might that be sir something I know you have strong opinions about and that is the Supreme Court well I was a victim of the Supreme Court. In the last hours of his discredited one term administration. John Adams pact our federal judicial system with men who are sworn enemies to me and to my vision of this country these are known historically as the midnight appointments some of them were so rushed that the actual physical documents were not put into the hands of the intended recipient some of them were still left on the desk of the secretary of state at the time that Adams the parted from Washington d.c. I felt that as a one term president having been retired to private life by the American people that Adams should do nothing after the election results were clear to hamstring the work of his successor it seemed to me wrong that he would pack the courts with high Federalists and men who despised me just to prevent me from in acting the legislative program which I had expressed to the American people elections matter Adams had one view of this country I had a different view of this country it was an Honest Contest Americans understood the difference he wanted more government I less I believe in states' rights he believes in greater federal authority I trust him and to govern themselves he's more skeptical etc He tells towards England I tell towards France we could go on and on the country knew the difference and in the election of $800.00 they chose me and retired him they spoke their will had been spoken it would be one thing for him to fill the courts with people who were neutral. But instead he filled them with people who are my sworn enemies trying to forestall what I call the 2nd American Revolution and so I was deeply. Disappointed in his behavior and John Marshall the man he named as the chief justice of the Supreme Court in the last year of his presidency went on to serve for 34 years sir and became one of the. The most important high federalists in the history of the Supreme Court he he if actively transformed the interpretation of our Constitution and made it much more national powerful centralized and capitalist than it would have been in the hands of somebody of a more neutral. Political persuasion so I was appalled by this and when I later had an exchange with Abigail Adams about the death of my daughter Maria we drifted into some political topics and I said one thing and one thing only. And your husband's behavior offended me and that was the midnight appointments when it was very clear that the American people wanted to move in in a different direction Mr Jefferson I was going to start our conversation by asking you what your general attitude towards is 3rd branch of government was but I believe you've made that quite clear in your opening statements are well I believe in legislative supremacy so in the state of nature each one of us governs some self when we create a social compact we provide mechanisms to distil the will of the people if the will of the people is to wear blue uniforms and not orange and we elect somebody to be our president our representative we expect him to try to bring about the result that we agree upon we believe in majority rule if possible we want consensus and if we want blue uniforms on the president things we should have orange ones or red ones instead he's not representing us that's the theory of democracy that instead of governing ourselves in pure democracy we create representative republic and democracy and the people that we choose our elected and they fulfill what they take to be the will of the people that means that the the branch of the federal government that's most important is the legislative branch because it's the one that that listens to the people and tries to gather their views and then distill them into enlightened law the courts are a distant 3rd cousin they don't create law they're not elected by the people they don't stand for reelection from time to time they serve for life. And that means that they're too detached from the dynamics of our society to represent that society faithfully we should never put power into the hands of people that are independent of the will of the nation and so I'm against life tenure I'm against politicizing and aggrandizing the judicial branch it should be the very quiet humble meek and diffident 3rd cousin of the other 2 branches and the one that matters most in a free society is a legislative branch where debate can occur where the people can contact their legislators where they can punish a rogue legislator by retiring him at the next election if somebody doesn't represent me well then at the next election I vote for somebody else I vote to retire him that's the principle of majority rule but if I name somebody to the Supreme Court and he serves for 50 years if he does things that are not only not representative of my will but are at tag on a stick to the very ideas of American constitutional democracy we have no recourse he can't be disallowed that he serves for life on good behavior and I can ask all of your listeners to turn to their history books there has never once been a successful impeachment and conviction of a Supreme Court justice of the United States they have life tenure and they serve far longer than would be healthy in any free society Mr Jefferson I understand that you naturally you were irritated by the Supreme Court the midnight appointments I must say sir it's rare that I see you quite this agitated because I believe in democracy now it's a republic rather than an Athenian style democracy but I believe in the will of the people and the people have a right. To govern themselves according to their best lights they will sometimes go wrong they will sometimes be a liberal they will sometimes be swept away by women or for that a system or a national or international emergency of course but the response to that should not be to take government away from them their response should be to train them through public education so they make better choices and weigh evidence more carefully and seek for enlightenment we can't have a group of referees who stand outside of the process and tell us who we are and what we really want and explain to us why what we did in our legislative bodies doesn't suit them and therefore they veto it by judicial review you know if you look at your constitution sir and read it with all the care that you possibly can you cannot point to any clause in that constitution which sets up the principle of judicial review and other words there is nothing that the founders of the Constitution put into the Constitution itself or mentioned in the Federalist Papers that would enable the judicial branch of government to sit in isolation and strike down legislation duly passed by the House of Representatives by the Senate of the United States and signed by the sitting president there is no such mention no such clause no such principle in the Constitution that notion of judicial veto or judicial review was imposed upon the Constitution in Marbury v Madison in 1803 by my cousin John Marshall and that was an effective constitutional one to that change the very nature of our constitutional society without a plebiscite without a referendum without an amendment as I said Mr Jefferson it's rare to see you still agitated about a specific issue. If we could you have this unique viewpoint sir of being there when the government was formed and is following through to my time and I'm wondering if you could take yourself out of the equation and look at this what would you define the proper function of the Supreme Court to be well it is the court of highest appeal so there has to be a final arbiter if Kentucky and Virginia get into a dispute they don't go to war with each other under our system they file lawsuits in the federal court system and if that percolates all the way up to the final arbiter of the to the Supreme Court that court then adjudicates and says Kentucky is right and Virginia is wrong or the verse or they're both right or both wrong we need a final umpire I certainly accept that if you read the Constitution the courts have the Supreme Court at least has some powers of original jurisdiction involving foreign countries and certain commercial things and so on and so the founding fathers wrote in a certain level of original jurisdiction other words cases that can start at the Supreme Court so that's a constitutional power that the Founding Fathers discussed and they gave to the Supreme Court of the United States they did not give the power of judicial veto to the courts now just I wasn't there I wasn't in Philadelphia so I can't speak authoritatively about what they intended but I think they wanted the courts to have a strong advisory role so let's say that the Federalist government under John Adams passes the sedition law which it did in $79081.00 would hope that the Supreme Court would look at that law which basically made it a crime to criticize the Adams administration. You would hope that the Supreme Court would look at that and say in our opinion that the law the sedition law violates the 1st Amendment of the Constitution of the United States we think that you cannot have a 1st Amendment and blithely pass a sedition law which effectively censors free speech therefore we the members of the Supreme Court strongly urge the legislature to revisit those laws and to think better and to to try harder to make sure that they that they accord and resonate with the fundamental laws of the Constitution that should be their role a strong even stern advisory role but not an actual veto over legislation duly passed by both houses of Congress and signed by the chief executive the president of the United States that would be my preferred approach understood Mr Jefferson but. I am a bit confused done on who gets the final word the people the people sir get the final word because we are sovereign and Risso was in some sense correct when he said the people are always right even when they're wrong Mr President we need to take a short break from this conversation when we return I'd like to delve into that question a bit farther and who speaks finally for the people thank you sir. We'll be back in just a moment you're listening to the Thomas Jefferson No. Support comes from awaits him as Cafe and Bar downtown Amarillo for 26 years offering fine dining Tuesday through Saturday and catering for any size event O.H.M.'s Cafe dot com. If you live in the high plains then High Plains Public Radio is your source for regional news and programming stories about this part of the world that really matter do you enjoy listening to this station Public Radio replies some listeners like you for support become a member to keep this valuable service alive on the high plains call 180677444 during business hours or good h.p.r. Dot org and hit donate now. Welcome back to the Thomas Jefferson our your weekly conversation with President Thomas Jefferson Welcome back Mr Jefferson thank you so this is when we took our break Mr President I was asking you of the home finally speaks for the people in it now it would seem that our Supreme Court is is is become the final word on issues like. Voting rights immigration personal freedoms isn't the Supreme Court supposed to make those decisions no and it's unseemly and if you think about it rationally for a moment let's take something that's of great national importance the status of the 2nd Amendment under what circumstances do the people have the right to keep and bear arms as you know there's an enormous divisive sometimes angry debate in the United States in your time about the split your for that right on down force and I and my point is though that it wasn't a big issue in my time but it is a gigantic one in your time so how do we settle this. You need a national conversation you need to have town meetings as they do in New England you need to gather people together legislative bodies in every state and territory need to debate this there need to be newspaper wars and and debates I understand that Mr President but help me if I'm wrong and if I'm looking at this too simplistically but we can have all the conversations we want but if that law is challenged and goes before the Supreme Court they decide and how have we empowered 9 unelected people to make a decision of that magnitude for more than 330000000 Americans under what principle of the Constitution to those 9 individuals have the right to make decisions that involve a 3rd of a 1000000000 people do they know more than you do about guns do they know more than you do about crime do they know more than you do about the Constitution and the original intent of the founding fathers yes yes yes Mr President I understand your point your point and its well made but that doesn't change the fact of where we are today the Supreme Court gets the final never have happened and you can change it but it did happen if you did have some to terms with the 2nd Amendment then there is the remedy is to have a an amendment or a new constitution and fight it out gather together $55.00 or $550.00 people. Carefully chosen from amongst the population of the United States put them into a room and say we want you to wrestle with the use of guns in a free society and according to natural law a natural right and we want you to come out with a solution that fits your time and your place a Supreme Court justice may be prejudiced you may be a gun lover he may be a gun hater he may believe that guns are one of the bulwarks of human liberty or he may think that there are a source of enormous public. Violence in corrosion he may be somebody who loves this country he may secretly not love this country he may be well educated in constitutional terms he may be badly educated he may have good mornings and he may have bad mornings he may have had a fight with his son and he comes into the court and makes a decision that's going to affect the lives of a 3rd of a 1000000000 people we can't trust that much fundamental law and that much basic principle of our system to somebody who is that accidental and that unaccountable and we don't you know you posit this one posits us all we need these these people to sit in in isolation and make these determinations but you're pretending that they're creatures out of Plato's Republic but they're not they're men like other men they have the strengths and weaknesses of other men they have the susceptibilities in the in the seductive abilities in the temptations of other men we mustn't regard them as demi gods they are human beings and they are no more able to make these decisions for you than they are for themselves you may consider me a naive citizen when I and make this statement but I know that you are opposed to lifetime appointments on the other hand I choose to believe as you do in the goodness of people that when they're put in that position they're going to make the right choices I believe in the goodness of man until he has power. And the minute he has power I no longer believe in that and I want to change him by process and principle and constitutional fi at so that he can't do dangerous things that's number one I believe in the goodness of humanity but the minute somebody has power including myself that person is no longer to be entirely trusted that's the most important of the points that I wish to make Secondly we need to believe that every Supreme Court justice has a deep commitment to natural law to human liberty to the Rights of Man to the Bill of Rights but if you study the history of the court and look at all the justices who have served since the time of George Washington and tell your own time you will come up with what John Adams would call a mixed bag some outstanding jurists some people of great brilliance but corrupt principals like Mr Hamilton would be and then others who are mediocrities and non-entities humans bring different levels of focus of principle and of purity to the things that they do and you cannot trust somebody over a 20 or 30 or 40 year period to maintain an absolutely strict commitment to civil rights and natural law it just doesn't usually happen and if you don't believe me study the history of the Supreme Court of the United States you will find for example one of my 3 appointees. Thomas Todd of Kentucky. Is almost universally regarded as one of the greatest mediocrities in the history of the Supreme Court I take no delight in that I name somebody one of 3 Todd and he is by constitutional and judicial historians regarded as a profound mediocrity that can't be good I chose him thinking that he would be better life tenure makes it impossible to remove him well let's use your good judgment Mr President who makes a good Supreme Court justice what are we looking for is it proper judicial interpretation or something else I think that you look for people who are brilliant jurists they need to know how law works the nuances of law how precedent works how legal discrimination is used to sort out a complex situation easy situations don't wind up at the Supreme Court only very complex situations you need somebody with a really serious even breathtaking commitment to the Rights of Man and the principles of the Declaration of Independence in the Bill of Rights we should urge on the side of human liberty we should are on the side of human individuals and we should err on the side of human rights against government government has all of the advantages the individual few and so you want people with a very very deep commitment to human rights and into the rights of man especially as articulated under our system in the Bill of Rights you want people of very wide reading and not just in the law but in the history of culture a philosophy of literature of different approaches to life from the ancient people of the Near East to the Greeks in the romans through the medieval world in the Norman Conquest in Great Britain beginning with the Magna Carta through the the British. Revolution of of 1688 you want people that are just deeply well educated but their prime star the lodestar of their lives. Says the Rights of Man and you want them to have a humble view of what a jurist represents in a society that wants to be a republic or a democracy that's what I would look for Mr Jefferson as you said you need 3 appointments to the court even mentioned Mr Todd the other 2 William Johnson Henry Livingston did you have any sort of what we would call now a litmus test for these individuals Yes a couple of things one is I want to geographic diversity you know want everyone to be from Massachusetts you don't want everyone to be from Virginia so I chose people from 3 different locations trying to keep a geographic balance on the court and this is particularly true in my time because they rode circuit in addition to being a Supreme Court justice they had to actually ride into their district and adjudicate cases that that's why John Marshall for example presided over the Aaron Burr treason trial in 87 because it was his jurisdiction as a circuit riding Supreme Court justice so geographic diversity that's that's important you want people who are moderates who are not passionate zealots in any particular direction then of course you want people who are qualified and would be regarded as qualified by any independent body of men who looked at their credentials their training their temperament their character and that and their qualifications but when I say litmus test Mr President talking about issues issues of the day you know but I will say this and I probably would not have admitted this during my lifetime but I can now and in retrospect I was not about to appoint someone who was a federalist Well these 3 gentlemen all pretty much agreed with your point if you thought the head did but they they turned out to be less. Rigorous in promoting Republican values than I had hoped I would not appoint a high federalist never that that would be a mistake because they have a view of American jurisprudence and American government that's fundamentally at odds with my own and mine is not just my own it was the overwhelming view of the American people in my time so a so I had a litmus test with respect to high federalism you're saying then Mr President that it's all right for a president to a naked appointment to the Supreme Court based on shared values in government Yes So my basic point is it is a little complex so listen carefully everyone if you can I believe that the president has a right to surround himself by people of his own stamp in his cabinet in his bureaucracy and on the court system that elections matter the people in ited States voted for me in 800 and not to continue John Adams They wanted to break with high federalism and that gave me a mandate in the empowered me to replace so far as I could public officials with people of my own stamp and people that represented the will of the people as I understood it and as I embody that So that's my 1st point the president has a right to appoint people of his own stamp elections matter if the Federalist said one in 1900 they would have had a right to put into the court system people of their own political persuasion thoughts how a majority area and system works however. The more important point that I wish to make is that a Supreme Court justice should be a sensually powerless and the the incredible concentration of power that that person has in your time brings about the kind of national crisis that you're now in because you've given them too much authority you don't regard them as 9 simple jurists now you regard them as the Oracle at Delphi and whatever they determine becomes settled law for a 3rd of a 1000000000 people that should never have happened. It's easier to understand the system if the if the courts are a weak 3rd branch of government woman they become central in the way that they have become in your time it changes everything and it means that you're going to wrangle over the politics of these people when that's not the prime characteristic you should be looking at their judicial temperament their judicial training their mastery of the history of case law their understanding of our Constitution those are the criteria those are the true litmus test is this person supreme Lee qualified for this post more than almost any other American is this person supreme Lee prepared and qualified to take on this sacred duty in our system not what's his opinion about guns or what's his opinion about immigration or what's his opinion about race those things should never come up in a judicial conversation because they are politics not law I would suspect Mr President that there are many Americans who would ask you shouldn't what's best for the country supersede those other requirements who gets to decide Well the president the president is one person who has been elected by all of the American people that is true he's not a king is not a monarch he's not Napoleon he is a 1st citizen but he doesn't have the kind of powers that you would put in the life of Louis the 16th or or George the 3rd we may be moving that direct you have moved dangerously in that direction the theory of our Constitution is legislative supremacy so the legislature meets the House wants to do something more radical the Senate wants to do something more conservative they have to come together in conference and hammer out their differences to produce something that they can both live with and then it has to pass muster with the president the president could veto it and say I'm sorry I don't think that this is good for the United States or I don't think that this is constitutional so there has to be a fairly high level of consensus for anything to get done under our system but that's where it belongs in the House the Senate and the executive in that order that's where the adjustment of our public lives belongs not. Somewhere across the city in the camp of these 9 unelected beings Mr Jefferson you actually were disappointed with with some of your appointees in fact of the you corresponded with Mr Johnson about this lame Johnson South Carolina was the closest to my view of this country of all 3 of the men that I appointed and I had higher hopes for him but he was so under the spell of the great John Marshall I mean Marshall served wine at casual receptions for his men and he took them to taverns and he tried to create a conviviality in a kind of a club which is not in itself a bad thing but Marshall was using it to co-opt the independent will of these other men and they were powerless in some sense in the face of Marshall's intellect and Marshall's charisma and so William Johnson of South Carolina proved to be less rigorous in. Pursuing my kind of states' rights Republican small government. Agenda than I had hoped and so we he we had correspondence and I tried to depress him a little to stay pure and to resist the great John Marshall but he had moments of great independence Don't get me wrong but but all 3 of the people that I appointed to the Supreme Court failed the test of being sufficiently rigorous to stand up to the. To the machinations on the twist of occasions of marshal there are presidents who followed you called their appointees the biggest disappointment of their presidency so you're not alone sir I did want to ask you about specific issues during my time there are what we would call hot button issues that people go to right away when we when we think about juicing a new Supreme Court justice in other words how do you vote on this issue was there anything like that during your time sir we did not have most of the issues that you have in your time but our biggest concern was and it goes back to what Franklin said at the end of the Constitutional Convention in Philadelphia as you know when he walked out a woman said What did you give us and he said a republic if you can keep it and really that was the issue of the United States from 787 and how at least 865 a republic but can you keep it and so I wanted us to have small government local control decentralization to limit especially a consolidated federal government to make sure there was a strong wall of separation between the military and the civilian authority to maintain budget. Conservatism and fiscal responsibility I wanted the smallest government that we could possibly have to hold us together as a people and to defer to state and local governments wherever possible and so we had to fight for that that was the issue of our time which is how much government is appropriate in a free society that that horse has left the stable in your time you have a love i-f. On of centralized government and you fight a little around the edges but you have so much government that I think even Alexander Hamilton might be appalled if you saw it in your time that's quite a strong statement Mr Jeffords I think it's true I think that had that Hamilton for all of his faults was a lover of human liberty and he wanted government to have a restrained approach to the American people and I do not think that that is the the way you go about things in the early 21st century and I'm leaving this conversation Mr Jefferson with the feeling that you believe that this is probably the greatest threat to our Republican when you tear up your constitution next time and settle the issues of the 2nd Amendment that reproductive rights and abortion them immigration and due process and all the 1st Amendment as you really examine them and clarify them I would urge you when tearing up the Constitution to make severe limitations on the power of the courts to limit the tenure of your justices to make them stand for a vote of confidence or no confidence from time to time and to reassert the principle in our republic of legislative supremacy Mr Jefferson I must thank you for this spirited conversation it's left me a bit weary in more heat but we shall we shall proceed on sir read books and take long walks in nature we're going to take a short break but we'll be back in just a moment your listening to the Thomas Jefferson. Support comes from Pioneer communications keeping the communities of western Kansas connected with local telephone high definition cable t.v. And high speed Internet on the web at and t. I o. And c o n am dot net Welcome back to the Thomas Jefferson our you will weekly conversation with President Thomas Jefferson. It is time for our weekly conversation with the cradle to Thomas Jefferson our generally seem to rush me on Mr Clay Jenkinson. Good to see you my friend here we are in the new enlightment Radio Network barn somewhere in rural North Dakota I have to say that this week's show President Jefferson surprised me his personal feelings he they were on his sleeve Jefferson had some sort of a deep animosity towards the Supreme Court part of that came because of John Marshall John Marshall was a genius. I think he might have been one of the very best Supreme Court justices in American history but Marshall's command his while Enos as a judicial thinker was such that he was able to outmaneuver Jefferson on a number of questions and Marshall read the Constitution in the most centralized most nationalistic way and Jefferson wanted to read it in a much in a way much closer to the old Articles of Confederation and so Jefferson thought why is this one man admittedly gifted able to to transform the way we think about our Constitution and interpret it that's not something that one person should have the power to do so Jefferson has a principled concern about this and I think he was right the problem with that David is all right so if you if you if you follow Jefferson and say there's no final umpire then what. You have to have some way of settling fundamental differences in a free society take the obvious example of when the contested election of Gore versus Bush went to the Supreme Court in the year 2000 right or wrong in their decision we can debate that for the end of time they eventually made a decision and said look to the best of our capacity we've decided that Bush won we're going to give our imprimatur. The accumulated credibility of the of the Supreme Court over time we're going to give that weight to saying that Bush won and Gore lost how many people think that was the wrong decision but there had to be a final umpire because otherwise what do you have civil war do you what how do you solve fundamental problems that are at the heart of a free society if there isn't some sort of on pie or if you just had baseball games or basketball games where the players called their own Falls' it would soon to devolve into fist fights and maybe worse so you refer to the ref you may think the ref made a terrible decision you made announce them you may you may think how can we go on with the principle of this corrupt ability but it's better than the alternative of having chaos and so Jefferson was never able to articulate a completely rational alternative and his idea that the justices will be kind of the stern side of civil libertarians who give Stern advice. What if the Congress says well we don't want your stern advice we don't care what you think we're going to do what we want so everyone gets why there is a final arbiter but for Jefferson the problem with a David is that it's not in any real sense Democratic I go back to what I started with is that I was surprised at how personally agitated Mr Jefferson was this week and I'm certain that you would defend your interpretation of his feelings you just did I do believe that I have a right but if people want to read more about this there are good books on the subject than the one that I would recommend as by James Simon and Siam Oh and what kind of nation Thomas Jefferson John Marshall and the epic struggle to create the United States there are other books. One called the Constitutional thought of Thomas Jefferson by man the mayor but the book that I would recommend most is James Simon What kind of nation Thomas Jefferson John Marshall and the epic struggle to create a United States and you know Jefferson is a believer in the will of the people so let's just take another simple case let's say there are 10 of us and we decide to shut down our presses for a month because we're afraid that unscrupulous people will publish something that gets us into a war with Canada so we have the legislature pass a law that says we're throwing out the 1st Amendment for the next month because it's such a critical moment we don't trust the people to be responsible. The court then says wait a minute you can't do that there's a 1st Amendment you can't just do that the will of the people is sometimes wrong the will of the people sometimes fails to separate church and state the will of the people sometimes wants cruel and unusual punishments the will of the people sometimes has. Illegal searches and seizures the will of the people sometimes forgets to permit habeas corpus so that the someone is actually able to see the charges that are leveled against him and have an appearance with counsel in front of a court of law so the courts say wait a minute you can pass a law but sometimes that law is at odds with the set of ground rules the monopoly rules the social compact that we have all agreed upon and when that happens we the court have to say no that may seem like the right thing to do it may even be wildly popular but it doesn't square with the bigger more fundamental set of rules that you laid out at the beginning and whenever that happens we have to be the empire to check you and say No however interesting or useful or popular that law might be it does not square with the deeper set of principles and values of this culture and therefore we have to stand up against the will of the people to say you failed in the sense to and that's the theory but as you know the courts have been all over the map the courts permitted the internment of Japanese Americans during World War 2 the courts in the Slaughterhouse Cases that towards the end of the 1900 century. Argued that the 4th teams Amendment protected corporations but they didn't bother to argue that are protected African-Americans if you look at the history of the decisions of the court. They're very often wrong plus he versus Ferguson the court argued at the end of the $100.00 centuries that we should have a nation of separate but equal facilities for black people and white people Dred Scott the court argued on the eve of the civil war that a black person had no rights that our Constitution was bound to respect the court has been shot through with bad decisions that would make you cringe or blush if you have anything like a sense of fair play in America but I think you need to take a story call context into that statement when you make it I want to ask you though about Marbury versus Madison Esther and what contemporary Americans who don't really know a lot about that that decision at but could you explain to me why it's so critical and important if you go to law school in the 1st few weeks are going to face Marbury v Madison and so here's what happened involves the midnight appointments so Adams has been disallowed acted but he's still president and so he tries to pack the courts and them a lot of friends and other people that he trusts to into positions in the judicial branch of government in part because they have to be filled in in part he wants to forestall the more radical elements of Jefferson's agenda these are known as the midnight appointments Jefferson resented them almost all the midnight appointments went through including John Marshall Jefferson when he came into power said the Madison who was a secretary of state if they got the commissions if they were given the job we have to respect that even though we hate it and they did but a handful of commissions had not actually been physically delivered to the intended recipients they were there they had been passed they had been approved signed by Adams but since they were still on the desk in the State Department Jefferson said to Madison if they weren't delivered. Just throw more a because if it's delivered well will honor that but if they weren't physically delivered then in some sense the contract wasn't closed so will avoid those and they voided of handful of them and one of them was a man named William Marbury who had been appointed to be a justice of the Peace in Washington d.c. So he sues he sits under something called a writ of mandamus or read of mandamus says hey hand it over Adams approved it he signed it there's a there's a there's a commission for me to be a justice of the peace handed over that's a writ of mandamus So he sued James Madison the secretary of state because he wanted his commission and I went to the Supreme Court and in this key decision in the spring of 1803 John Marshall writing for the majority said we wish we could give. Him his. His commission but we can't why because the provision in the $789.00 judicial law that would govern this was unconstitutional because it actually is in violation of a constitutional principle so it's a really clever so what John Marshall says is Jefferson should have given the commission to Marbury How dare you not give it to him but I can't give Marbury relief because what he's suing under the man damask clause of the Judiciary Act of 1789. Is unconstitutional because it doesn't resonate with the provisions of the Constitution so even though Marbury is right even though Jefferson is wrong and he should have given him the commission I can't grant that relief because that provision of that law is unconstitutional so 2 things here 3 things 1st of all poor Marbury gets nothing Secondly Marshall browbeats Jefferson and shames and publicly And 3rd this is the part that nobody understood the time Marshall installs into his decision the principle of judicial review he says whenever a provision in a law is at odds with the fundamental principles of the Constitution it is the business of this court to strike them down so this doesn't get done again until Dred Scott you know decades later but Marshall has slyly inserted this kind of worm this kind of virus that we live with to this day we're out of time for the discussion this week and we didn't even get to the 10th Amendment we may have to revisit those powers not delegated to the national government belong instead that the states and to the people it's a big deal today way and Roe you know Roe was for Roe is kind of strangely founded in the 9th Amendment almost every constitutional historian that I've ever met with says that it was an good constitutional argument Taishan And so that's another issue is that to find an abortion right in the Constitution is a twist of occasion and that's what Jefferson was against as I say we shall have to revisit this sir but right now it is time for this week's Jefferson watch we like to think of the Supreme Court as a nonpartisan and completely independent branch of government that make sure laws passed by Congress and the states conform to the provisions of the United States Constitution. The Supreme Court aspires to that a limp in the attachment and judicial neutrality but seldom achieves that like it or not there is a political sub stratum in court appointments and it can produce great political tension at unsettled moments in American life like now presidents nominate Supreme Court justices and the Senate has to confirm there has been occasional trouble since the very beginning the 1st justice to be denied a seat on the court was a man named John Rutledge It was 795 just 7 years into the new constitutional experiment Rutlidge had written an op ed piece critical of the j treaty a 794 treaty with Britain that tried to resolve certain lingering issues from the war of independence that was enough for a federalist Senate to scotch his candidacy Jefferson came into office in 1901 and what he called the 2nd American Revolution but poised to prevent that revolution was Chief Justice John Marshall Jefferson's distant cousin he was put into his life tenured position in the last months of John Adams failed one term administration Adams who distrusted Jefferson's Democratic radicalism essentially engaged in last minute court packing marshal and dozens of other midnight appointments to make sure that Jefferson did not take things too far to the left Marshall went on to serve for 34 years he was perhaps the greatest of all Supreme Court justices he was and did a foreign and Jefferson sighed Marshall wanted America to be a great centralized nation state not a confederation of sovereign states he wanted the nation the prize the sanctity of contract above any temporary notion of social justice he despise Jefferson's vision of a lightly governed inward looking agriculturally based loose association of proud Commonwealth like Virginia and Pennsylvania. We now live in Marshall's America not Jefferson's Jefferson struck back at the judiciary in 804 by convincing his partisans in the House of Representatives to impeach Supreme Court Justice Samuel chase a signer of the Declaration of Independence who had become of the noxious and outspoken anti Democrat from the bench the question was can you impeach a justice for what you regard as his nasty politics the u.s. Senate chose not to convict chase Jefferson seemed to sense that he was playing a dangerous game here one that could erode constitutional stability in the aftermath he admitted that such impeachments were what he called a bungling enterprise and he desisted from meddling with the independence of the judiciary there after Jefferson appointed 3 justices to the Supreme Court every one of them wound up disappointing him the last attempt to pack the court was 937 when Franklin Roosevelt just reelected in a landslide attempted to increase the number of justices from $9.00 to $15.00 so that is Amergin see New Deal legislation would not be struck down by judicial conservatives any longer Congress balked even Democrats in Congress including senators and representatives who were devoted to the New Deal refused to give Roosevelt such unprecedented power he was frustrated but this is how our system is supposed to work. What we should want is a justice with a 1st rate mind great analytical powers an unusually high capacity for legal discernment a nuance a deep grounding in the history of law the history of natural rights and the history of constitutions particularly our Constitution what we want is someone who knows a great deal about original intent but is not a slave to original intent that was then and this is now and by the way the Constitution was written to protect slavery so how original Do we really wish it to be we want someone who prizes a strict protection of human rights over government efficiency and over economic prosperity what you want on the court is a few crabby civil libertarians who understand that the whole genius of America is to leave as many people alone as possible as often and emphatically as possible so why are we locked into an angry national cage match on Roe v Wade the abortion decision issued by the Supreme Court in 1973. Both parties are behaving in a deplorable manner the Republicans want the nominee to pledge to overturn Roe v Wade the Democrats insist that he or she must hint at least that she will leave current abortion law in place not only is this the wrong basis on which to give someone life tenure but it trivializes the 3rd branch of our national government to a policy club consisting of 9 unelected and largely unaccountable beings the great questions of a great nation should not be decided by 9 unelected people they are men and women like other men and women capable of nobility and capable of pettiness vengefulness ignorance prejudice bigotry pride and self aggrandizement they have good days and bad days they see some issues with great clarity and others with the kind of muddled gut reactions that characterize all of the rest of us the future of this country should be in the hands of an infinitely wider body than the Supreme Court it would be like letting the starting lineup of the Chicago Cubs determine the future of the United States I believe the nomination process should be taken out of the hands of American presidents who misunderstand and misuse their appointment power for narrow and often temporary purposes and put instead into the hands of a severely nonpartisan think tank of constitutional experts look for raw judicial talent irrespective of that person's political views America is awash in men and women who would be outstanding Supreme Court justices but the very last questions we should want to ask them is where they stand on Roe v Wade or the Affordable Care Act or Firman of action I'm quite Jenkinson We'll see you next week for another exciting edition of The Thomas Jefferson our. The Thomas Jefferson hour is full to each would like to quote a sky education program that was distributed nationalized the only public the late President Thomas Jefferson has some 7. Scene 431826 and this pope percent is the president Jefferson is portrayed by the award winning humanity scholars in the office claim as changing some. To obtain a copy of his old Any Paschal for 12 patients please call 88882828 bytes we again that number is 888-8028 high for. This program is also available online at Jefferson Nala dot old with and on i Tunes. If you'd like to correspond with President Jefferson or submit a question for him to answer on the program please visit the Web site at Jefferson Allen dottle Thomas Jefferson I was produced at the coach a recording studios and this was supposed to coach Is it a steepness with a. Thank you for listening please tune in to him next week or another thought provoking historically accurate vote for the. District. H.p.r. Connect is the place where you'll find more news and information with programs that go beyond the headlines for a complete schedule or to listen online please visit our website at h.p. P.r. Dot org Next time on stupid next time on Studio 360 people don't think of Cleveland as sort of the big artistic of Cleveland is staging the international art exhibition that is so big and ambitious it might help people forget the city just lost a certain n.b.a. Player let's create so much critical mass that people can fly over I visit Cleveland to talk to the artists in the impresarios next time on Studio 360 Sunday evening at 7 Central. This is 91.5 k. t X p bushland 89.3 Kate c d h d l heart 91.7 k.v.a. And Hayes a service of High Plains Public Radio you can help ensure the reliable operation of our web stream by serving a signal monitor to inquire or volunteer just e-mail us at h.p. P.r. At h.p. P.r. Dot org or call 806787444.