Constitution, they inextricalDly intertwine themselves witli thendocument they interpret. Tlie Court’s opinions routinely employnthe fietion that, when the Justices speak, it is really thenConstitution speaking through them. The practical result isnthat when challenging the Court, one appears to challenge thenfundamental document itself. The natural reluctance to challengenthe Constitution discourages a political response to thenCourt’s rulings; these rulings are then enforced, whether persuasivenor not.nJudicial review presents a critical “Who is to decide?” issue.nThe Constitution itself does not say who is to interpret it. Itncreates three separate and equal branches. It does not authorizenone branch to bind the other two by its construction. JohnnMarshall thought the Founders had intended to give thenSupreme Court the power to interpret the Constitution for thenother branches but had inadvertently failed to write it in.nJefferson thought the Constitution’s silence on this issue wasnexactly what was intended—that each branch was to have equalnand unlimited authority to interpret the Constitution for itsnown purposes without one branch setting over the other two.nAs a lawyer, Jefferson understood that the power to construenor interpret a document is the critical power. The Constitutionn”is a mere thing of wax in the hands of the judiciary, which theynmay twist and shape into any form they please.” Its words willnmean whatever the interpreter wants them to mean. The Constitution,nif the Court has the ultimate say, is a Judicial Constitution.nAs Jefferson warned in a letter to Wilson Cary Nicholasnon September 7, 1803; “Our peculiar security is in possessionnof a written Constitution. L,et us not make it a blank pajjcr bynconstruction.”nHe amplihed these views in a letter to Judge John Tyler inn1810. The law in the hands of John Marshall “is nothing morenthan an ambiguous text, to be explained by his sophistry intonany meaning which may subserve his personal malice.” Judicialnreview, he argues, allowed for a “Supreme Court “which fromnthe citadel of the law can turn its guns on those they werenmeant to defend.” The Justices, by l810, had “erected themselvesninto a political body with the assumed functions of correctingnwhat they deem the errors of the nation.”nJudicial review is incompatible with what we know thenFounders did intend—federalism, majority rule, the sovereigntynof the individual, the separation of powers, and checks andnbalances. They did intend that each branch would check thenother—that each would have an independent power to determinenthe meaning of the Constitution. In other words, Jeffersonnbelieved the Constitution intended concurrent review byneach branch rather than judicial review; as he wrote in his FirstnAnnual Message to Congress, December 1801, “Our countrynhas thought proper to distribute the power of governmentnamong three equal and independent authorities constitutingneach a check upon one or both of the others in all attempts tonimpair its constitution.” To “make each an effectual check itnmust have a right in eases which arise within the line of its propernfunction where equally with the others it acts in the last resortnand without appeal, to decide on the validity of an actnaccording to its own judgment and uncontrolled by the opinionsnof any other departments.” Jefferson naturally recognizednthat conflict may well arise; such conflict, however, would producen”less mischief than if one [branch] is set over Hie other.”nSurely, if the Founders had intended to set one branch over thenother, they would have said so. Surely, as a matter of democraticntheory, Jefferson is right that the elected branches cannnot be less equal than the judiciary. The elected branchesnmust have rights at least equal with unelected judges to determinenthe meaning of the Constitution. Judicial supremacy,nsaid Jefferson with inexorable logic, could not, in the long run,ncoexist with democracy.nIn a letter to Spencer Roane, Jefferson, then age 75,nsharpened his point. It is “an axiom of eternal truth in polities,nthat whatever power in any government is independentn[unchecked], is absolute also: in theory only, at first, while thenspirit of the people is up, but in practice, as fast as that relaxes”n(emphasis added). Judges who cannot be removed are “thenmost suspect source of decision in a democratic government.”nJudges are “effectually independent of the nation.” Finally, then”most suspect source of decision” remains suspect even if it isnmade up of the best men in the country: “it is the office of angood judge to enlarge his jurisdiction.”nJudicial review, in the hands of a “strict constructionist”njudge, is like a loaded gun: dangerous, but not necessarily fatal.nModern Supreme Court Justices, however, speak of a “living”nConstitution. By diis, they mean they are free to apply currentnstandards—theirs—to fill in gaps in the Constitution, or evennto overrule it.nIn recent years, some Supreme Court Justices have been surprisinglynopen in their opposition to democracy. In Octobern1985, Justice William Brennan told a Ceorgetown Law Schoolnaudience that capital punishment is “under all circumstancesncruel and unusual punishment prohibited by the EighthnAmendment.” This conclusion ignores the express provision ofnthe Fifth Amendment that people will have to answer for capitalncrimes with appropriate safeguards: “No person shall benheld to answer for a capital, or otherwise infamous crime, unlessnon a presentment or indictment of a Grand Jury . . . nor bendeprived of life, liberty or property, without due process of law.”nJustice Brennan, on the other hand, believes that capital punishmentnis “an absolute denial of the executed person’s humanity”nand “irreversibly degrading to the very essence of humanndignity.”nThe Court’s role, as explained by Justice Brennan, to declaren”certain values transcendent” and “beyond the reach of temporarynpolitical majorities,” is not consistent with Jeffersonianndemocracy. It gives the Court tremendous power. Would annangel really want that kind of power?nThe position of the modern Justices is, at best, less than candid.nFor while expressly claiming wide—indeed overriding—ndiscretion, their only claim to authority is the 1787 document.nBut that document was written in a wodd that Justice Brennanntells us “is dead and gone.” The Justices believe they should applyncurrent standards to the old document. They are a strangengroup of runaway agents claiming authority their principal neverngave them under a document which they feel free to rewritenand reinterpret without any check or balance.nAs Jefferson wrote in an 1804 letter to Abigail Adams:nThe judges, believing the law constitutional, had a rightnto pass a sentence of fine and imprisonment, becausenthat power was placed in their hands by the constitution.nBut the Executive, believing the law to be unconstitutional,nwas bound to remit the execution of it; becausenthat |)ower has been confided to him by the constitution.nThat instrument meant that its co-ordinate branchesnshould be cheeks on each other. But the opinion whichnnnMARCH 1995/13n