Coming up this week on the Thomas Jefferson Hour, we speak with President Jefferson about the Supreme Court, and he has some opinions. Jefferson did not like the way we have come to define the tripartite system of government. He thought that the judiciary branch should be a very poor third cousin of the other two branches, but it has become so strong and he is a bit dismayed by that. Jefferson got upset about this partly because John Adams had appointed John Marshall as one of his midnight appointments, partly because John Marshall was so extremely clever and a great constitutional strategist, but also Jefferson wanted a simpler states' rights, more decentralized nation. We asked him for a way to fix this and it was a difficult question for Mr. Jefferson. He does say tear up the constitution from time to time and clarify the issue of the power of the Supreme Court, and he argued for limitations on judicial appointments. It's the Supreme Court this week on the Thomas Jefferson Hour. Join us for all that and more.

---

David: 00:00:00 Good day citizens. Good day, Thomas Jefferson Hour podcast listeners, and thank you for listening.

Clay: 00:00:12 Oh my. Here we go, David. This huge, crazy national controversy over the Supreme Court is now beginning and I tell you, you're going to hear about almost nothing else for the next six months. It's important.

David: 00:00:25 It is important, but you know, I tried to talk to Mr Jefferson about my optimism and I talked to you and I asked him if he thought I was naive and he did not say —

Clay: 00:00:25 I did not answer.

David: 00:00:36 But I really do believe that we don't know what we're going to get.

Clay: 00:00:40 Well, you know, remember what Dwight David Eisenhower said, he said, I made two mistakes during my presidency and they're both on the Supreme Court. I love that. It's not — it's probably apocryphal, but it's a great, great line.

David: 00:00:40 Back to my naivete.

Clay: 00:00:56 Well, think of how the country responded to John Roberts when he affirmed the affordable care act, you know, they expected that he would be on the right side, the anti affordable care act side. He voted to affirm it and made a lot of enemies.

David: 00:01:08 One of the things Jefferson hates is that there's lifetime appointments and I'm going, okay, but yeah, maybe that's good because they're not going to have to answer to anybody.

Clay: 00:01:08 I don't think so.

David: 00:01:08 He didn't quite. You don't either.

Clay: 00:01:17 I don't either. I think that we should have the Missouri plan. If you know what the Missouri plan is, that someone gets named to a court, you become a justice of the court. In Missouri. Many states have adopted this. Then after a period of four or six or seven years, you have to stand for a vote of confidence. If you pass that vote of confidence, you're in either for life or for another long period, but the idea is that a person is appointed, she or he, they have a trial period of x number of years and then we have a last chance to retire them if we think we need to, if they are corrupt or if they're senile or if they are bigoted or if their personal behavior becomes a public issue. The idea under the Missouri plan, which is widely admired as the best possible way to go about this, is to give people effective life tenure, but they have to pass muster at least once and maybe more than once in a vote of confidence or no confidence. I think that's the answer. I do agree with your main point that people, once they get tenure, often surprise us — that you don't know what Neil Gorsuch is going to think 15 years from now. You don't know what Clarence Thomas is going to think five years from now. People change.

David: 00:02:31 They don't have to answer to anybody, but maybe that's the naive part.

Clay: 00:02:35 Let me say Jefferson's view of this. It's really, it's kind of a nuance — He said, we want our judicial branch to be independent of the people. Otherwise how could they sort these things out, but we don't want them to be absolutely independent of the people. Then they become a tyranny, so you want them to have enough independence to be safe, to make unpopular decisions and get away with it. When they have to say, you're violating the first amendment, you're violating the fifth amendment, you're violating the eighth amendment, but we want them to be not so independent that they become a little nine member tyranny. So Jefferson understood this balance. I don't think we have it now. If you think of what just happened in Ireland, Ireland just voted by a very strong majority to liberalize its abortion laws. That was a vote of the people of Ireland. That's where this belongs — a decision of this sort, about affirmative action or the second amendment, about immigration. These belong with the people in some massive sense.

David: 00:03:39 So that's really Jefferson's point is that uh, in your essay, you talk about a baseball game with no umpires.

Clay: 00:03:48 Well, but I mean, think of it this way, just to take, I mean, I don't want to get into the question of abortion, neither do you, but the polls show that something like 63 to 67 percent of the American people want to keep things more or less as they are. That's two thirds majority. So let's say that the court meeting two years from now strikes down Roe v. Wade and outlaws most or all abortions in this country. Now, nine people — What's the percentage that they represented of 330 million? — have overturned the will. Sixty seven percent of the American people having lived with this for 40 years say, We kinda like it the way it is. We're not happy with it, but it beats any alternative that you might want to put forward. Let's just leave it alone. We want what Bill Clinton said. We want abortions to be legal, safe and rare, legal, safe and rare. That appears to be the will of about two thirds of the American people.

David: 00:04:44 I get that. But you also have to take into account, as you said, elections matter. The current president was put an office.

Clay: 00:04:44 Yes.

David: 00:04:53 And he said he was going to do this.

Clay: 00:04:53 He said he was going to do this. And so elections matter. I'm with you on that.

David: 00:04:58 When it comes to Jefferson, I don't want to say he ducked it, but he went to his old standby. Tear up the Constitution.

Clay: 00:05:04 He's right, you know — If you had said to any of the Founding Fathers, will there ever be a set of case law of a fundamental nature about abortion? They would have said, that is a — That is such a private world that it has no place in the public square. They would never have been able to contemplate that We're having this discussion, so how is it therefore that we are now having this discussion? The Founding Fathers couldn't anticipate the stuff, David, they didn't know that a nine millimeter handgun could shoot 100 people in three minutes. They didn't know that our borders were going to become sore porous with the north-south Issues that the world, the whole globe is facing. They didn't know about radical Islam. They didn't know about it. They didn't know about cyber pornography or cyber predation or cyber terrorism. They couldn't have anticipated our world. So why do we think — I think Jefferson's right. You say it's his old standby, but as you is, how about we write a Constitution that faces the issues of your time?

David: 00:06:05 There are many things the Founding Fathers could not have imagined, including, how's this for a segue, podcasts, and we are dependent upon those of you listeners who listen, you know, I keep hearing from people that say, you know, it's all right that you remind us and so we want to just, if you enjoy the Thomas Jefferson Hour, please consider supporting it — visit Jeffersonhour.com. Even if you're not going there to give us money, there's great information on shows. There's old shows. And that is the portal to all of that. Plus if you go there and click on donate, you can support the Thomas Jefferson Hour — without your support and your listenership, We are nothing. So please consider that.

Clay: 00:06:52 Can I speak to this for a moment?

David: 00:06:54 Absolutely. You have to do the voice though.

Clay: 00:06:55 I can't, I don't have your sonorous voice. I've been wrestling, agonizing over the past few months about where we are. I've read everything I can get my hands on. I just read a book called How Democracies Die, which I highly recommend to our podcast listeners: How Democracies Die, jointly authored. We are at what may turn out to be an existential moment in the history of the United States. I don't want to get into that at the moment, but I want, I do want to say is that the Thomas Jefferson Hour is an attempt to provide historical grounding, logical clarity, a sense of context and nuance, a generosity of spirit that doesn't try to demonize the other side automatically, but a skepticism about the arguments of anybody about these questions. This, in my opinion, I wish I were so much better at this than I am. I wish I were a perfect embodiment of enlightenment, clarity, and the Socratic method. But I'll tell you this, the praise that we get is from people who say, thank goodness there is such a thing as an attempt at generosity of spirit, an attempt at synthesis, an attempt at clarity, a grounding in history of use of evidence in the way that evidence is supposed to be used as kind of an emancipation from talking points and memes and tropes. That's what I try to do. And if I'm not doing a good enough job, I want to be told that by our listeners, but I believe that we need this kind of thing. Not this — but this kind of thing like the Jefferson Hour now more than ever. We are at one of the pivotal moments, I think. I think it's the most pivotal moment of my lifetime and there is some reason to believe that we could be descending into chaos here — the partisanship, the metaphor that these two authors and How Democracies Die uses guardrails. You have your Constitution but then you have these guard rails that are not in the Constitution, but they've been used: courtesy, deference, respect, not demonizing the opposition, not calling the press enemies of the people, not doing arbitrary things. They say these guard rails are the reason that our democracy has worked and both parties in the last 30 or so years, but particularly the conservatives, but both parties have been demolishing the guardrails and their view is: beware of what you do here folks. Because if you break down the soft Constitutional guard rails of a free society, you may be descending into not just a cold civil war, as Carl Bernstein calls it, but an actual set of armed exchanges and violence. I think everyone needs to read this book, How Democracies Die, whatever your politics, and we need more of what the Jefferson Hour represents — that we would be better off, that we could — We could rise out of the swamp, the slew, this miasma, and begin to say, in the spirit of the enlightenment, sir, I disagree with what you say, but I shall defend to the death your right to say it. That's the principle we need to get back to.

David: 00:10:10 And on that note, if you do have a question or a comment for President Jefferson, for Clay, for the show, write us, go to JeffersonHour.com, and in fact, if you'd like to please include your phone number and a good time to call and perhaps we can record your question and include it in the show that way. We'd really like to do that. Thanks so much for listening.

Clay: 00:10:31 Thank you citizens. And listen now, to this Supreme Court issue of the Thomas Jefferson Hour.

David: 00:10:40 Good day citizens, and welcome to the Thomas Jefferson Hour, your weekly conversation with President Thomas Jefferson. Mr Jefferson is portrayed by the award winning humanities scholar and author Clay Jenkinson. I'm your host, David Swenson, and seated across from me is President Thomas Jefferson. Good to see you, sir.

Jefferson: 00:11:01 Good day to you, my dear citizen.

David: 00:11:03 I'd like to begin our conversation with a pleasantry, Mr Jefferson, but I have a serious subject to discuss with you this week.

Jefferson: 00:11:03 What might that be, sir?

David: 00:11:11 Something I know you have strong opinions about. And that is the Supreme Court, sir.

Jefferson: 00:11:17 Well, I was a victim of the Supreme Court. In the last hours of his discredited one term administration, John Adams packed our federal judicial system with men who were 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 recipients. Some of them were still left on the desk of the secretary of state at the time that Adams departed from Washington DC. 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 enacting 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 humans to govern themselves. He's more skeptical, etc. He tilts towards England. I tilt towards France. We could go on and on. The country knew the difference, and in the election of 1800, 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 were my sworn enemies, trying to forestall what I called the second American revolution. And so I was deeply disappointed in his behavior. 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 most important high Federalists and the history of the Supreme Court. He effectively 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. 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: 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 a different direction.

David: 00:14:14 Mr. Jefferson is going to start our conversation by my asking you what your general attitude towards his third branch of government was. But I believe you've made that quite clear in your opening statement, sir.

Jefferson: 00:14:28 I believe in legislative supremacy. So in a state of nature, each one of us governs himself. When we create a social compact, we provide mechanisms to distill 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 or 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, and the president thinks 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 republican democracy and the people that we choose are elected and they fulfill what they take to be the will of the people. That means that 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 third 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 and 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 third cousin of the other two branches, and the one that matters most in a free society is the 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 antagonistic to the very ideas of American Constitutional democracy, we have no recourse. He can't be dis-elected. 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.

David: 00:17:27 Mr. Jefferson I understand. 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.

Jefferson: 00:17:34 Because I believe in democracy. It's a republic rather than an Athenian style democracy. But I believe in the will of the people. The people have a right to govern themselves according to their best lights. They will sometimes go wrong. They will sometimes be illiberal. They will sometimes be swept away by whim or fanaticism or a national or international emergency, of course, but the response to that should not be to take government away from them. The 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. 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. In 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