Thomas Jefferson wrote to William Giles on December 26,rn1825, “it is but too evident that the three ruling branches of thatrndepartment are in combination to strip their colleagues, thernState authorities, of the power reserved to them, and to exercisernthemselves, all functions, foreign and domestic.” In otherrnwords, the separate national powers would naturally have morernto gain by combining and cooperating than by clashing.rnAs Jefferson wrote in his Autobiography (1821), “Our federalrnjudges are effectually independent of the nation.” Jefferson believedrnthat, though honest men are appointed to the judiciary,rn”all know the influence of interest on the mind of man and howrnunconsciously his judgment is warped —how can we expectrnimpartial decision between the General Government, of whichrnthey are themselves so eminent a part, and an individual staternfrom which they have nothing to hope or fear.” The federalrnjudges “are then, in fact, the corps of sappers and miners steadilyrnworking to undermine the independent rights of the Statesrnand to consolidate all power in the hands of that government inrnwhich they have so important a free-hold estate.” As he wroternto William Jarvis in 1820, “Our judges are as honest as otherrnmen, and not more so.”rnJefferson believed that majority rule should always prevailrnand that individual rights are safer with majority rule than inrnthe hands of judicial guardians. He did not believe thernSupreme Court had even the limited review power present inrnHand’s doctrine of judicial restraint. He also did not believernthe Constitution made the judiciary supreme over the otherrnbranches, or over the states. The Constitution instead delegatedrnauthority to each of the separate and coequal branches. Thernexercise of any delegated power presupposes that the grant extendsrnto the occasion that has arisen, and it is a necessary incidentrnof the grant itself that the grantee shall so decide before hernacts. The grantee may, of course, be wrong, but then he is accountablernto the grantor and no one else.rnThe President, under Jefferson’s approach, has a duty to executernonly those statutes —and judicial orders—that he independentiyrnbelieves are constitutional, regardless of a SupremernCourt decision to the contrary. The courts are supposed to enterrnsuch orders as they think proper and constitutional, but neitherrnthe President nor Congress, if they disagree, are bound tornenforce them.rnThe Alien and Sedition Acts, passed in 1798, subjectedrnfriendly aliens to deportation and made it a crime to criticizernthe government or a government official. The federal courtsrnupheld the constitutionality of the laws. Twent)’-four people,rnmostly newspapermen, were seized and ten found guilty andrnjailed in a bloodless reign of terror. As soon as Jefferson becamernPresident in 1801, he exercised what he believed to be his constitutionalrnduty and freed everyone jailed under the Alien andrnSedition Acts, returned fines, and ended all prosecutions underrnthem. He later wrote to Abigail Adams that the law was “a nullityrnas absolute and as palpable as if Congress had ordered us tornfall down and worship a golden image; and that it was as muchrnmy duty to arrest its execution in every stage as it would havernbeen to have rescued from the fiery furnace those who shouldrnhave been cast into it for refusing to worship the image.”rnUnder Jefferson’s approach, if the branches disagree, theyrnneed to work it out. For our system to work smoothly, the threernbranches have to be in agreement—the legislature passes thernlaw and appropriates the money, the executive carries out thernlaw, and the judiciary should base its rulings on the law. Usually,rnthe disagreement arises between Congress and the Courts.rnThe President, in such a case, could act as tie-breaker. Conceivably,rnthe three branches could take three different positions,rnsomething which stiikes us today as very disorderly—andrnit is. But Jefferson did not see disagreement as a bad thing—itrnis the way difficult problems get worked out in a democracy.rnAnd, as Dumas Malone has noted, Jefferson’s approach describesrnhow our government actually worked until the eve ofrnthe Civil War.rnCan Jefferson’s approach be resurrected? It is attractive becausernit does not require any new statute or constitutionalrnamendment, just a different outlook. It is making progress atrnthe state level. In Washington, Representative Kathy Lambertrnhas proposed a Jeffersonian “Balance of Powers RestorationrnAct,” which would give the legislature power to review andrnoverturn state supreme court decisions that invalidate acts ofrnthe legislature. The Governor could follow whichever opinionrnhe agreed with until the people, in a referendum, make the finalrndecision. At the national level, however, the Jefferson doctrinernwould probably only resurface if the Supreme Court isrnfoolish enough to make a serious attack on presidential or congressionalrnpower—an unlikely scenario. As Jefferson noted, thernnatural expectation is that the Court will expand and enhancernthe powers of the other two national branches. And despite therncomplaints of some members of Congress, the other branchesrnwill not get into a fight with the Court over a state’s rights issuernthat does not concern their own powers.rnCongress, the main beneficiary of the Court’s rulings, willrnnever be serious about limiting the power of the Court. Indeed,rnCongress has successfully given the public the impression that,rnbecause of the separation of powers, it has no clear power overrnthe federal courts. But the Constitution, in Article III, grantsrnCongress almost absolute power over the judiciary. Congressrncreated the lower courts in the first Judiciary Act and couldrnabolish them tomorrow. Indeed, at the Constitutional Convention,rna constitutionally mandated lower federal court systemrnwas debated and rejected. Congress also can withdraw thernSupreme Court’s power to hear appeals in whole or in part. IfrnCongress does that, the Court is limited to its enumeratedrn”original” jurisdiction —cases involving ambassadors and thosernin which a state is a party. Although the Constitution places thernSupreme Court at its mercy. Congress has chosen not to use itsrnpowers.rnWhat about a new constitutional amendment to prohibit judicialrntaxation? Unfortunately, judicial taxation is a symptomrnof a much deeper problem, and it is that problem which needsrnto be solved. Moreover, it is unlikely that Congress, which willrnnot let the states vote for an amendment on term limits or a balancedrnbudget, will propose an amendment to limit judicialrnpower over taxes. But even if an amendment were ratified, itsrnwording would be, to quote Jefferson, “a mere thing of wax inrnthe hands of the judiciary, which they may twist and shape intornany form they please.” What is a “tax”? What is an “increase”?rnwhat is “new”? The boring legal questions will roll on and on.rnYes, to overrule the Court by constitutional amendment.rnCongress must approve the amendment. But James Madisonrnproposed a better solution which almost became part of thernConstitution. Constitutional change, Madison argued, shouldrnbe initiated by the states, and, if three-fourths of the states agree,rnthe amendment should become part of the Constitution. Thatrnsimple little amendment would change the nature of ourrndemocracy. If we had the Madison amendment process, wern20/CHRONICLESrnrnrn