gives to the judges the right to decide what laws are constitutional,nand what not, not only for themselves in theirnown sphere of action, but for the legislature and executivenalso in their spheres, would make the judiciary andespotic branch.nLearned Hand largely agreed with Jefferson’s analysis of judicialnreview. In The Bill of Rights (1958), Hand argued that judicialnreview is irreconcilable with both the Constitution andndemocracy. It certainly does not accord. Hand continued, withn”the underlying presuppositions of popular government to vestnin a chamber, unaccountable to anyone but itself,- the power tonsuppress social experiments which it does not approve.” ThenConstitution does not authorize the Court to “assume the rolenof a third legislative chamber.” Hand did believe that judicialnreview was a practical necessity in extraordinary cases. Eachnbranch exercising its independent power to interpret thenConstitution could lead us, in practice, to two or three differentninterpretations. Jefferson recognized this possibility when hendeclared the Alien and Sedition Laws unconstitutional whilenCongress and the federal courts deemed them valid. Certainly,nthe branches could come into sharp conflict. But is this sonterrible? The theory of checks and balances, after all, assumesna good deal of bumping. Similarly, the theory of federalism assumesnthat some conflict between the states and the federalngovernment could actually be useful. Conflict, after all, is notnjust unpleasant, it is the way free people move toward a consensus.nAs Jefferson explained to William Torrance in June 1815,nsuch conflict would still produce “less mischief than arises fromngiving to any one of them a control over the others”:nIt may be said that contradictory decisions may arise innsuch a case, and produce inconvenience. This is possible,nand is a necessary failing in all human proceedings.nYet the prudence of the public functionaries, and authoritynof public opinion, will generally produce accommodation.nIt is important to remember that the Founders hated thenKing’s judges at least as much as the King. They designed thenlegislature to make laws. The members are supposed to representnthe people of their districts. The introduction of a billngives the public notice that its interests may be altered. A proposednlaw may arouse fears among those who will be hurt by it.nAs Marsilius of Padua wrote, “Anyone can look to see whether anproposed law leans towards the benefit of one or a few personsnmore than of the others or of the community, and can protestnagainst it.” Congress is set up to hear from its constituents,nhold hearings, and consider what the law will cost and whom itnwill hurt. The Founders’ purpose was to assure that any law—nwhich of necessity would be enforced against those who did notnwant it—would be fully considered and supported by publicnconsensus. The process is supposed to be very hard, and normallynrequires a good deal of compromise. If a majority is notnsatisfied with the results, it can always refuse to return the representativenwho voted for it, something it can never do with anfederal judge.nThe judiciary, since it operates by diktat, does not need tondevelop a consensus to support its rulings. Indeed, judicial interventionnwill short-circuit a developing political consensus.nFor example, in the early 1970’s, New York and a dozen othernstates had developed majorities to agree on some form of legaln14/CHRONICLESnnnabortion. The issue was very difficult but democracy was workingnit out. The Supreme Court, however, in its 1973 Roe v.nWade decision, removed abortion from the political process bynfinding it to be constitutionally regulated. Following that decision,nthe winners did not need the political process, and the latternwould no longer be helpful to the losers. Because it is notnbased on consent. Roe v. Wade has festered bitterness andnviolence for 20 years. Those like Justice Brennan who criticizena majoritarian legislative process for not rectifying “claims ofnminority right” certainly cannot argue that a decision by anmajority of judges operates any more effectively in that regard.nEuropean judges do not declare legislative acts to be illegal.nIn England, Parliament exercises ultimate sovereignty. A Europeannintellectual, looking at our Court’s unreviewable power tondo just that, would probably say that America is a judicial dictatorship.nThe legislature in the United States, he would pointnout, can raise taxes and build roads but the important questions,nthose that decide what kind of country this is, all end upnin the Supreme Court. We might answer that the Court is then”least dangerous” branch, as Alexander Hamilton said; it has nonexecutive or legislative authority; it does not make rules; itnmerely decides cases that come before it. But the trouble withnthis answer is that the Court is able to select the cases thatncome before it. During its 1992-93 term, the Court refused tonhear 7,233 cases but accepted 97, or 1.3 percent. In 1950, byncontrast, the Court heard 10 percent of the cases brought to it,nwhich indicates it was then acting as a court of appeal over thenlower federal courts. The Court’s power to pick from amongnsuch a large number of cases gives it the practical ability to rulenon issues the Justices think important, to act, in effect, as anCourt of National Policy. The Justices, of course, may have thenpower to pursue a legislative agenda, but not exercise it. On thenother hand, the Court may decide a lot of things the legislaturenshould be deciding.nThe Supreme Court is usually described in politicalnterms—“conservative,” “liberal,” “moderate,” “activist,”n”restrained”—^but the political labels cover up the real problem,nwhich is that the Court may be whatever it chooses: it hasnthe unlimited power to define its own powers. The issue is itsnpower rather than its orientation. Power may be limited in anconstitution, but orientation cannot. Nor can orientation benpredicted when power is not limited.nThe mechanism for everyday federal control over state andnlocal majorities is the I4th Amendment, adopted in 1868. ThenBill of Rights only restrained the actions of Congress and thenfederal government. The 14th Amendment, however, imposednfederal power over the actions of the states. It provides that nonstate shall “deprive any person of life, liberty or property withoutndue process of law, nor deny to any person within its jurisdictionnthe equal protection of its laws.” Those words are veryngeneral; what do they mean? Initially, in the 1873 SlaughterhousenCases, the Court said it did not find in the amendment’snlanguage “any purpose to destroy the main features of the generalnsystem” the Founders had established. The Louisiana legislaturenhad granted one company a slaughter-house monopoly,nthereby putting its competitors out of business. The competingnbutchers claimed 14th Amendment protection against the legislativenpower of their own state, which deprived them of theirnlivelihood. The Louisiana law was hardly appealing but thenCourt upheld it, saying that to hold otherwise would be “songreat a departure from the structure and spirit of our institu-n