The Thomas Jefferson Hour; #0449; Judicial Review and Executive Priviledges

Welcome to the Thomas Jefferson Hour, your weekly conversation with our third president of the United States, Thomas Jefferson. The Thomas Jefferson Hour is produced by High Plains Public Radio and New Enlightenment Radio Network, a non-profit organization dedicated to the search for truth and the tradition of Thomas Jefferson. Today's program was recorded in May of 2004, and it covers the topic of judicial review and executive privileges. Please join us as our host Bill Crystal speaks with Thomas Jefferson portrayed by Humanity Scholar Clay Jenkinson. Good day. Welcome to the Thomas Jefferson Hour, your weekly conversation with the third president of the United States. Mr. Jefferson, it's good to see you, sir. Good day to you, citizen. Since we last met, there have been a number of wonderful features taking place in this country. I find one of particular interest as the United States Supreme Court is asked to decide whether or not a case of executive privilege will be honored or not. It appears the vice president of the United States had meetings with certain energy people, and there are those in this country who would like to know what it was that this energy commission decided, who made up the commission,

and the records have been subpoenaed by Congress, and the president of the United States vice presidents say, no, these are covered by executive privilege. Two interesting issues, it seems to me occur as a result of this one event. Number one, of course, is the issue of executive privilege you and your own time called for it, but the second is the idea of appealing to the judiciary as the final arbiter. That was something else that you did not necessarily approve of. It came enduring your tenure, but it was not something you particularly desired. Yes, well, let's go through carefully all of the issues here. First of all, I think everyone agrees that we need separation of powers, that if you concentrate all government power into one entity, one branch of government, that this will undoubtedly lead to abuse. And so the doctrine that we learned from Montesquieu, the great French political theorist, was that if you subdivide power into co-equal branches, and those branches in a sense are constantly

watching the activities of the other branches and checking any excesses or abuses, that this will guarantee the health of a republic and that will keep people free. But by concentrating power into one entity, you automatically invite despotism. So, although I wasn't one of the 55 men who met in Philadelphia in 1787 to produce our new constitution, I certainly agreed immediately with the doctrine of separation of powers. For those who are unfamiliar with this, the national government has three coordinate branches. There is an executive, which in my time consisted of the president and his immediate secretary, the secretary of war, the secretary of the navy, the attorney general, and so on. There is the legislative, the primary branch of government, and in our system it has two houses, a senior house, the senate, elected every sixth year, and a junior house, the house of representatives,

elected every second year. And the idea was that even within one of the three co-equal branches of government, there needed to be checks and balances so that the house could check the senate and the senate could check the house and the way in which senators and representatives would be selected would be sufficiently different than different types of men would serve in those capacities. So, that's the second branch. The first branch is the executive, the second branch is the legislative, which is subdivided into two, and the third branch of government is the judicial branch of government. And each of these has different powers enumerated in the constitution of the United States, and each of them is there to balance governmental efficiency on the one hand against caution and a real concern about excessive build-ups of power in any single entity of government on the other. And this produces the American system, what's known as a tripartite system of

government. And I certainly agree that each branch not only needs to watch the activities of the other two, but also to protect its own purview, its own powers. And yeah, as many have pointed out throughout history, if you have three co-equal branches, certain inertia can tend to to bog the whole system down. One branch needs to be more activism perhaps than another, or branches. And historically, and for very good reasons, the executive branch tends to have been the most activist of all. Indeed, and that's why we have an executive, because that person is meant to respond to national concerns on an immediate basis. You can't always call the legislature into service. The legislative representatives scatter out to their homes across the nation, and they can't on short notice, particularly in my age, where transport is very inefficient,

be called overnight to the center of power so that there is an agent, the president, the executive, who applies the will of the legislature, administratively, and responds to immediate concerns, and the founding fathers intelligently made this person also the commander-in-chief so that in the event of a war crisis, the president can himself lead troops into battle to defend our coasts and harbors from external attack. So the executive does have that elasticity, which doesn't exist in the other branches, because there are, in my time, five or six justices of the Supreme Court and in my time, you know, a hundred or more members of Congress, the executive is a single being, and he doesn't represent Vermont, he doesn't represent Ohio, he doesn't even represent Virginia, he represents the entire nation, all of the people of the United States. Indeed, that's, and that's the system as it ought to be, but I am a believer in legislative supremacy. I believe in the theory of

a republic and a republic as a republic, only in so far as the nation's formal activities, its government leans upon the actual will of the people, and I think the will of the people is more adequately expressed through majority rule in the legislative branch than it could ever be in a single individual, even if that individual were always someone as great and virtuous as George Washington. But let me quickly address the the underlying point of your question, and that is, doesn't this system produce inefficiency? Yes, and I must say I'm not sorry about that. I said once that there should be a mandatory one-year waiting period between the first and second readings of any bill. In other words, if Senator Axe from Virginia comes forward in the Senate to propose a bill to change our relations with France, there should be a one-year period between that proposal and the second debate about it, so that people can calm down most issues, as you know, go away naturally without any need for formal legislative activity whatsoever. Governments are always too

quick to react. I prefer that little or nothing get done in government, and I would rather have inefficiency bordering on anarchy than efficiency bordering on tyranny. But keep in mind, I lived in a radically simpler time. So the executive is engaged in all sorts of things. To some degree, I suppose the legislative and the judicial branches have oversight. They have to correct the actions of the executive. They certainly at least want to know what the executive is doing. And in the case of the vice president and the energy commission, people would like to know who was on this commission, whether it represented not only oil producers, but also people who were concerned with conservation and ecology. And they would like to know what was discussed. Well, from a constitutional standpoint, I don't think that they have much basis for argument, because the Constitution is silent on this question. The Constitution does not say that

all conversations that occur within the larger umbrella of the executive branch should be reported to Congress. There wouldn't be separation of powers if that were the case, nor should all activities, discussions that occur in Congress necessarily be reported to the judicial branch or the executive. In other words, each branch of government has a certain autonomy. And internal discussions by each of those branches are in some sense no business of the other two branches. And I think it's perfectly fine for the legislative to demand that it know exactly what occurred in those meetings. Let me stop you for a moment, Mr. Jefferson. As I hear you, week after week, you're saying that the most truly representative body within the American government is the House of Representatives. That is correct. It is most closely tied to the people. If, in fact, the House of Representatives wants to subpoena discussions that took place in the executive branch, you stand in the way of it. I mean, it seems to me the people are asking for these documents.

No, we need separation of powers. And if you erode that doctrine in cases like this, then it might not be available in cases of enormous importance. What if the executive is engaged in extremely intricate diplomatic negotiations, which could have hurt a war? And the legislative branch intrudes and demands the papers. And then in a kind of clumsy way, the the junior senator from North Carolina exposes these delicate negotiations, which are in mid course and destroys any hope of an agreement. And suddenly the country is plunged into war by the ham handedness of a senator from somewhere who thinks he knows more than the executive branch. No, we must have a genuine wall of separation of a certain sort between each of the three branches. And the executive could not engage in significant activity on behalf of the welfare of the American people in the long run. If everything it did were, were subject to subpoena by the other branches. And yet, and yet we have a Supreme Court poised perhaps to demand of the executive branch that

it turn over these these discussions. That's the amazing thing that in your time, if the, if these nine unelected creatures on the Supreme Court declared that the president should turn over the papers, he will. That's a breakthrough that you that could not have been anticipated by the founding fathers. I mean, the founding fathers would have said, well, the Supreme Court can say whatever it wants, but it doesn't have the power to enforce those edicts. And therefore, I can I could foresee a time when the president would say, well, I appreciate it and respect the court, but I respectfully disagree and decline to turn over the papers. If, in fact, the president were to do that, what would happen? Well, in your, in your system, he probably wouldn't do it because there is legal precedent dating back a almost half a century in your time to compliance. I believe in the famous case of President Nixon and his recordings that when the Supreme Court unanimously demanded that he hand them over, he did in fact hand them over to the judicial branch of government.

In other words, he felt that he had to comply with the rule of law even when it undermined his chance of survival as president. So I don't think that this will happen in your time because I think that you have a de facto constitutional provision which requires compliance by the executive branch. But in my time, it happens somewhat differently. If you recall Andrew Jackson, Jackson in several famous cases that were decided by Chief Justice Marshall said, the court has made its decision now let it enforce it. In other words, Jackson went about his business and said, the court can say what it wants, but the court doesn't have an army. The court doesn't have funds to spend. The court doesn't have a cabinet. The court doesn't, doesn't have to answer to all of the American people. I, President Jackson, do so and I am going to do what I think is right for the country, and if the court doesn't like it, the court will have to be frustrated. And so the tradition in my time was of defiance of the court and let me also remind you that if the court had decided in the

famous case Marbury V Madison in 183 that I was required to turn over the commissions to Marbury, I would have refused to do so. That's why Justice Marshall did not decide the case in favor of Marbury in 183. If he had decided it in the case of Marbury, he knew I would defy it and that that would destroy whatever credibility the court had. So he slightly refused to decide the case saying that Marbury did not have the right to demand his commission because of a certain provision of the 1789 Judiciary Act was unconstitutional. So Marshall avoided a direct confrontation with the executive branch because he knew he would lose it and he did something infinitely more sligh. He installed in the Constitution the unconstitutional doctrine of judicial review, which used sparingly for 100 years or so after his death has become really a commodity, a staple within American government today. Yes, he lost the battle, but he won the war and he also created

a silent coup. He changed the Constitution by his own force of will. If you read the Constitution, as you well know, there isn't any enumerated power of judicial review. That's one he created. You are listening to the Thomas Jefferson Hour, our weekly conversation with the third president of the United States. And Mr. Jefferson today is discussing judicial review. He's talking about the fact that the vice president of the United States is making his case before the Supreme Court as to whether or not he needs to turn over the minutes of the Energy Commission. So Mr. Jefferson, you pointed out to us that judicial review is not found in the Constitution, although it exists de facto to this day. What would happen if the president of the United States, even if the Supreme Court said you must turn these documents over? What if he were to say, no, I won't. And you can't make me. Well, the other branches government would now have a choice to make. They could either acquiesce and grumble, which is almost certainly what they would do,

or they could impeach the president and declare that he had committed high crimes and misdemeanors by refusing to comply with a direct order by the judicial branch of government. And then, if he were impeached, the Senate would try him, and he might or might not be convicted. But the only remedy that the other two branches of government have against an executive out of control is to impeach him. And I think you know from recent experience that impeachment is easier to talk about than to accomplish. Well, and it seems it's easier to consider impeachment over one's personal misdeeds than over the misuse of national power as you so appropriately noted with President Nixon. There'd be much more appropriate to use the impeachment powers to protect the sanctity of the Constitution rather than to intrude upon the private misbehavior of somebody or other. But you see the point that each branch, this is very important doctrine. Each branch is independent up to a certain point, but interdependent in certain ways. For example, the president can say,

I would like to wage war against Ireland. I need 100 million dollars to do so. But the Congress is free to say, no, we're not going to supply the funds. And in that situation, the president would be incapable of waging the war. That would be the House of Representatives primarily. All money bills have to originate in the House of Representatives. That's one of the the best provisions of our Constitution. Now, the president could also say, I want to abrogate the treaty we have with Ireland so that we can go to war with them. That's the Senate's, I think, purview, right? They have the treaty making power. It's true, but if the president abrogates that there's only one remedy, and that is to impeach him because the Senate can ratify a treaty of any sort that it pleases. But unless the executive is willing to carry it out, then that treaty has no force. And if the president refuses to carry it out, again, the Senate can either acquiesce and grumble, or it can impeach the president to try to reassert its authority. It would seem, Mr. Jefferson, that popular will is still a potent factor,

though. Recently, we've been having 9-11 hearings. And at one point, executive privilege here, again, was cited. There was not going to be testimony by anyone involved in the executive branch under oath in public, that they would be willing to testify in secret before the committee, perhaps, but not in public. And there was a human outcry that the national security advisor, Kondolisa Rice, was not going to testify. Many believed her testimony would be important. And the president act we asked suddenly, Kondolisa Rice appeared under oath in front of the committee and all of the cameras. Well, that's good news that the people decide that the will of the people still plays a very significant role in the sorting out of American public life as a lover of the people and a believer in their sovereignty. I have to praise that. And I think that's a critical important element in the success of any nation that calls itself a republic. On the other hand,

there are times when a constitution has to be protected against the will of the people. The will of the people might be, for example, to abolish the First Amendment in times of crisis. The people might say, protect us, secure us, and crush free speech to secure us. At that point, you would hope that the government itself would say, that's not the remedy to this particular crisis. And we refuse to acquiesce in the decided will of the people because the ramification of that would be to destroy the very liberty that we are seeking to protect here. Well, there's a case in point, really, out of your own time, not so extreme a case, but a case nonetheless when Congress passed the Alien and Sedition Acts, which, in essence, limited the rights of people under the First Amendment. That was the other way around, of course. The government was violating the First Amendment. The people were not in favor of the Alien and Sedition laws,

and the people at the next election threw the rascal out and sent him back to Braintree and Massachusetts. It was a bit more complex than that. Wasn't it Mr. Jefferson? Not really. I believe that the Alien and Sedition laws, particularly the Sedition law, was a palpable violation of the First Amendment of the Constitution of the United States, and that when the people had a chance to reflect upon this, they decided they had no more confidence in the administration that put this forward in Congress and the legislature. Mr. Jefferson, we're going to have to return to this one after we take a short break because I think the Kentucky resolutions in your own underhanded role in this process may have influenced it. You are listening to the Thomas Jefferson hour. Please stay tuned. We will be back in just a moment. Welcome back to Thomas Jefferson hour. Mr. Jefferson, before we went to break, you were

suggesting that the Alien and Sedition acts were the cause for President Adams being thrown out of office. No question of that. You actually played quite a role in undermining this legislation by yourself writing the Kentucky resolutions and seeing that they were passed by the legislature in Kentucky, and that federal law was challenged. Oh, Comtrair. What I did was go back to Virginia, and I had long discussions with Mr. Madison, my closest friend. It's certainly a much more somber constitutionalist than I was. And of course, he was the father of the Constitution, both Adams and I were out of the country when the Constitution was written. And Madison and I decided that since the courts had refused to remedy this situation, and the Congress had done this extra constitutional thing by trampling upon the First Amendment, and the President had

reluctantly, I will say, reluctantly signed the legislation into law, that the only remedy now is the states. And so I wrote what became known as the Kentucky resolutions. My friend Madison wrote what became known as the Virginia resolutions. And these resolutions quite simply said that when the national government exceeds its constitutional authority and begins to violate the rights of man as we understand it in our sacred documents, and know one of the three co-equal branches is willing to challenge the others that are in excess, then it's the people or the state governments that have to do so. And what I said for Kentucky was that if this occurred and there were no internal checks within the national government, that the states had a right under natural law to protest, and even an extremity to refuse to enforce that unconstitutional legislation within their own boundaries. In other words, I was teasing out the doctrine of nullification. And Madison didn't go so far in Virginia. He said when he was always more cautious than I was,

and in Virginia he said whenever the national government exceeds its constitutional enumerated authority and there's no internal check from within the national government than the states have a right to protest. And that's a wonderful, a wonderful concept. Unfortunately in this time, it means nothing because the federal government gives so much money to each and every state that the federal government can insist on obedience or withhold money for highways or what other services they're collecting. It's tyranny. It's a form of slight tyranny. It is. And it's a federalization of the government that I think the founding father certainly never intended. Of course, it violates the 10th amendment that says those powers not delegated to the national government belong instead to the states and to the people. If I'm the state of Virginia and I send $100 million to the national government per year for highways within Virginia and the national government sends part of that back with conditions on how it will be spent and and reserves the right to withhold those funds of Virginia does not comply with other national legislation. That's a form of tyranny.

And yet it's practiced routinely in this day and age. Shocking and I'm surprised that you can sleep at night. Mr. Jefferson, let's return to the topic de jour. Let's look again at the whole process of executive privilege. It was something that you exercised in your own time. It is. Let me give you a quick history of it. The Constitution is silent on executive privilege, but as I've said, any rational theory of the Constitution is that the branches have to check each other against excesses. So the first application of what became the doctrine of executive privilege occurred in 1796, I believe, during George Washington's administration. In Washington had sent John Jay to England to negotiate a settlement to many outstanding disputes that we were having on the high seas and in trade policy with England. And the J Treaty, as it became known, was ratified by the United States Senate, although very narrowly, and it was one of the most

controversial events of my lifetime. And it really helped to create the two-party system that you now have, because most Southern and Western Americans felt that the J Treaty was a sectional treaty that supported the economic activities of New England while ignoring the economic needs of the rest of the country. And the treaty was very unpopular and probably in a plebiscite would not have been passed by the American people, but the Senate did finally ratify it. But during this crisis, really, the first great political crisis in American constitutional history, the House of Representatives, which was more radical than the Senate, demanded that George Washington send over all of the background papers, the memos, the notes, the internal discussions of the treaty, so that the House of Representatives could read the transactions. And President Washington replied that he would not send over those documents to the House of Representatives, and the reason

that he used was that under the Constitution, the President can negotiate treaties, but when they go to the Congress of the United States, they are ratified by the Senate, not the House, and therefore, under the separation of powers doctrine, the House of Representatives does not have a right to see those papers. The Senate might ask for those papers and get some of them, but the House would illegitimately be asking for them. And yet Washington, as I understand it, did give the papers to the Senate. He was in no way trying to keep something back, keep things secret. No, he was a good student of the Constitution, and he knew that the President proposes a treaty, even negotiates one or his agents, and then it's the Senate that must consent to it by way of ratification, and the Senate needs to have a good deal of information. But even then, if President Washington had felt that by sending all of the papers to the Senate, he would have endangered our national security,

he would have withheld them on the principle of separation of powers. Well, I don't think anyone looking at the case that's before the Supreme Court now is really thinking that it's national security nearly as much as it might be making a pact with certain economic interests over against the important ecological interests that are being ignored. Even so, I'm going to continue, and maybe surprising you, by advocating the President's right to withhold any information he wants, and the only remedy is impeachment. Let me move on to my administration. Oh, there's another remedy. One can not re-elect a President that refuses to be. Of course, we'll have to do that. I think you have that chance coming up later this year, and the American people will decide whether to continue this administration in office or to retire it, and that is the most important radical tool that we have in a free society. You can have a constitutional revolution every fourth year, and not a single bullet need be fired. Well, although Ralph Nader would argue that you really don't have that opportunity,

because the two parties that exist today are virtually the same. He speaks nonsense. Of course, every American who is a voter has the right to walk into a private voting booth and cast a secret ballot, which will then determine who the President is of the United States, and if you don't like. We've got to go back to the election of 2000, Mr. Jefferson. The popular vote was one by one candidate, the Electoral College selected another. As long as you have the Constitution that you have in the Electoral College is in place, you must abide by its structure. The structure is quite clear that the popular vote is not determinative. The popular vote can sometimes be at odds with the Electoral College vote. That was a provision created by the founding fathers, and if you don't like it, the remedy is not to whine about it. The remedy is to change the Constitution of the United States, but let me return to my argument. When I was, the structure is quite clear that the popular vote is not determinative. The popular vote can sometimes be at odds with the Electoral College

vote. That was a provision created by the founding fathers, and if you don't like it, the remedy is not to whine about it. The remedy is to change the Constitution of the United States, but let me return to my argument. When I was president to the United States, my vice president, Aaron Burr, after killing Hamilton in a duel, decided to commit treason against his own nation. We're not quite sure what he was doing, but we know that he had treasonous communications with the British, treasonous communications with the Spanish, and that he was trying to stir up some sort of rebellion or something or other in our southwest in the Ohio country and in the Tennessee Valley and in the Mississippi Valley. Eventually, this became so clearly treasonous that I had him arrested, and he was tried in Richmond, Virginia by none other than my cousin, John Marshall, who was circuit riding on behalf of the Supreme Court back when they did ride circuit. Marshall, in that famous

187 treason trial of Aaron Burr, was told by Burr's defense lawyers, some of the most eminent lawyers in the country that I possessed papers which might exonerate Colonel Burr, and therefore John Marshall presiding over the case sent a subpoena to the executive, to me, demanding that I turn over the relevant documents so that the case could proceed. I refused to do so, and I said that the executive is immune from certain types of intrusions from the other branches, that the executive in order to retain the separation of powers doctrine has to be able to decide that in some cases papers shall not be delivered, and the executive is the final determinant of the rightness of his actions, and if there is a perception that this is wrong-headed, the remedy again is not to reelect him or to impeach him. Marshall responded by saying that the executive was not immune to court proceedings,

that the executive was a citizen like other citizens, and that he must respond to subpoenas just the way any farmer in Michigan would do, and that I was required under law and under our constitutional system to send over the papers. I refused to yield to that nonsense, but I did in order to avert a crisis, agree voluntarily out of my own good will to send certain of the papers to the court enrichment, but I made it clear that I was doing so on a voluntary basis, not in response to the subpoena. That's a little bit like what just happened with the 9-11 commission. Well, I do believe that the executive branch must protect its own autonomy and independence by refusing to become the puppet to the other two branches of government. And yet on the other hand, on the other hand, as the person selected by the people of the United States of America, the president certainly has

a responsibility to those people to demonstrate that he is not acting with malice of forth. Well, look what I did. Look how I solved the problem. I preserved the integrity of our separation of powers doctrine, but then I supplied the papers voluntarily. What could be better than that? And better still, Marshall managed to find grounds to acquit Burr. Well, that was, of course, the silliest decision that he ever made in his ignominious 35-year reign of terror on the supreme court. If Burr wasn't guilty, Benedict Arnold wasn't guilty. Well, he was your running mate, Mr. Jefferson. Well, I never ran with anyone. He was my vice president chosen for purely opportunistic reasons because we needed new work to sweep away the rascal, John Adams. That is exactly right. And the point is that Marshall acquitted him, and I accept that because we live in a nation under the rule of law, I disagree with it. If I had been the kind of, if I had followed the doctrine

that, as you're espousing it, I would have insisted that Burr be locked up after he was acquitted. But no, the separation of powers meant that I had, however grumblingly, to acquiesce in the decision of the judicial branch. Indeed, indeed, sir. We are grateful that you did. I'm merely chining you a little bit. You're making light of the most important doctrines of our Constitution. No, I'm making light of the fact that you swept John Adams away. It was a rather close, close election. Well, the fact is he swept himself away. And if he didn't do it, it was Colonel Hamilton, as you well know. Hamilton did it. I think his move... I played very small role in this. And if one is swept away for choosing peace over war, then swept away one should be. But the fact is that the American people had effectively lost confidence in the Adams administration. Yes. And when that happens, then our system works because he was retired. And he became a very important senior statesman, didn't he? It's clear that the Federalists were imploding that there was within their ranks an atom which was going awry. And that was clearly Alexander Hamilton. Yes, I didn't write a public pamphlet denouncing out of his pages.

It's wholly unfit for the presidency. The leader of the Federalist party, Colonel Hamilton, in New York, wrote a public pamphlet in which he undermined the integrity and the character of his own chief executive, thus not only helping to defeat John Adams in the election of 1800, but effectively destroying his own Hamilton's chance of any future life as a public statesman. And life, as it turned out, period. But the curious thing, of course, was that Adams did as well as he did, given all of those things that were going against him. There was a great deal of support for him in New England. I mean, it was universal. And there was some support for him, even in the middle states. But please, sir, let's not wrangle over politics. Nothing could be more disagreeable. Adams was my dear friend. And we managed to become very close friends, again, later in the last years of our life. And we agreed on almost everything. And I said to him that the artificial disputes, which circulated around us between 1790 and 1800 should be seen as

storms passing through the atmosphere. And they really didn't have any impact on the two of us as human beings. If we had died in our sleep, two others would have become the figurehead leaders of the two great parties of this country. And really wrangling in politics is beneath the dignity of gentlemen. So let me turn back. I'm going to be silent, sir. Excuse me. Let me turn back to the doctrine of separation of powers. Let's say that the legislative branch passes a bill declaring methodism to be the official religion of the United States. And it appropriates a million dollars to create Methodist societies in every village. That would be a palpable violation of the First Amendment in my view. I would hope that the president would refuse to spend the money. And that the president would say, under the separation

of powers doctrine, the legislature is free to pass any bill that it wants. But I, as the president, have the right to decide whether it is a constitutional bill or a wise one. And therefore, I'm going to impound the money. And if Congress doesn't like that, then Congress should impeach me. Now, of course, earlier, the president could have vetoed the legislation, but presumably, it would have been overridden by the Congress of the United States. So you see what happens. You have two branches in Congress, the House and the Senate, and one can check the other. If a bill passes both of them, and it's not at all easy, then the president can veto it. If the Congress feels the president is in error, it can override the veto with a two-thirds majority. Then it does pass into law, but the president, under the separation of powers doctrine, still has the right to refuse to spend the money, to impound the funds. At that point, if Congress doesn't like it, they can pass a resolution demanding that the executive comply. That's unenforceable. And so their only remedy at that point is impeachment. If they impeach, they may or may not convict. So it's a very complex system, but you see that the

executive has considerable authority to defy the legislature with impunity. I don't think the framers were in any position, though, to contemplate the United States as it exists today, or even to understand a political system where both houses of Congress are controlled by the same party, and where the executive comes from the same party as well. It seems to me we live at a time conceivably where an entire philosophical agenda can be carried through Congress and signed by the presidency, and there's very little standing between that agenda, and those of us who are not in agreement with the possible exception of the Supreme Court of the United States, this thing you call nine unelected, unimpeachable human beings. I think many of us look to them sometimes with hope rather than with fear and dread. Well, in your time, it may be that the judicial branch has become more important than it was in mind. Here's why I didn't like the judicial branch. These are unelected beings. They're appointed. They serve for life. And that means that they don't

really have a dynamic connection to the people. They don't emerge from the people. They don't represent the people. They don't have to face re-election by the people. They don't have to report to the people. They don't depend for their funds upon the people. And that gives them too much independence. And so I feared this. Now, in your time, it may be that they're essential because they're they're significantly independent enough of what you're talking about that they might have the capacity to check some excesses. So I wouldn't rule out that if I had lived to see your time, I might be more favorable towards the judicial branch than than I was in my own day. But I still have philosophical concerns about it because anytime you have a a group of people that's small that is meant to work on behalf of a population this large, it creates enormous tensions. And it undermines the democratic ideal that we should have as widespread a system of representation as

possible and that the people wherever possible should determine their own destiny. And yet all things considered, considering that they are appointed by partisan presidents in the history of the court. A number of Supreme Court justices have proven to be remarkably independent. Including my own. I appointed three and I was disappointed by all of them. And I believe one of your more recent presidents, Dwight David Eisenhower, said I've made two mistakes in the course of my administration and they're both on the Supreme Court. We'll be right back with our scholar Clay Jenkinson. You are listening to the Thomas Jefferson Hour. Please stay tuned. We will be back in just a moment. Welcome back to the Thomas Jefferson Hour. Seated across from me rather than the third president

of the United States is Clay Jenkinson who so ably represents him except perhaps when taking cheap shots at John Adams. Thank you very much today Clay for for minimizing those at the very least. A feature of our program is having having you read for us from a letter of Mr. Jefferson's relevant to the topic that we're discussing. Yes, you know, I just love doing this program Bill. I'm glad to sit across from you here on the 22nd floor of the new enlightenment radio network tower in Reno, Nevada. And we have a great time with this. And I think everybody knows that you're doing work on John Adams now and that you had a triumphant first national appearance, a Trinity church in Denver, Colorado earlier this spring 2004. And we have recorded this program at the time when there

is the executive privilege controversy going on in the United States Supreme Court. As you said earlier, the administration is wanting to withhold records of conversations about energy policy. A number of groups like the Sierra Club and others have demanded that those records be made public. There is now a classical separation of powers crisis going on. The Congress has demanded that that those be made available. The executive has refused and it's gone to the Supreme Court of the United States. And the Supreme Court later this year in 2004 will determine whether the president has to turn over those papers and the doctrine that is being examined here is a separation of powers doctrine and more specifically what is called executive privilege and executive privilege goes back to the founding fathers and particularly to our man Thomas Jefferson who in the bird trial in a sense invented the idea of executive privilege and said the executive is privileged to maintain a certain privacy in his internal communications and that the other branches, however

important they are to to checks and balances cannot routinely have access to what he has deliberated within his own branch. And it sounds good. I mean one one really likes listening to Mr. Jefferson suggest that the the president is about serious work and that it would be compromised if if if we all knew and yet I think for many of us living today we've come to depend upon extra governmental authorities like like the media you know for for real insight into what the government is really doing. I think even in John Adams time he talked about all being masquerade that people are saying one thing well they're really doing other things and and I think you know I sympathize with the Sierra Club. I'd like to know what was going on in those meetings. I'd like to know if they were the people that were pumping the oil out of the ground that were represented and or people who had other concerns and interests. Well as a citizen I'm offended by what the Bush administration is attempting to do which is to protect internal discussions which

probably were they revealed would create a national controversy about how environmental policy is being written and by the government of the United States. And that's different though from the constitutional doctrine and as a constitutionalist I think that maybe the Bush administration is actually right on constitutional ground right because I do think I want to just read something to you that's very interesting you know the the classical case from our time was Nixon versus the United States 1974 for those two young to remember this. Nixon had secretly recorded many conversations within the Oval Office and this was found out and the the judicial branch and the legislative branches of government demanded that those those tapes be made public or be made available in the in the impeachment and in the court cases and Nixon refused to turn them over and it went to the Supreme Court and the Supreme Court unanimously in 1974 said no you have to turn over the tapes Nixon swallowed hard and turned over the tapes and there was a smoking gun tape that cost him his president. Well and and there are still 16 minutes of silence I mean

they're they're clearly were things that were erased. That was a clerical error according to Richard Nixon but listen to what the what the court said in the unanimous decision requiring Nixon to turn over the tapes this goes in the other direction here's what they said the expectation of a president to the confidentiality of his conversations and correspondence like the claim of confidentiality of judicial deliberations for example has all the values to which we accord deference for the privacy of all citizens and added to these values it is the necessity for protection of the public interest in candid objective and even blunt or harsh opinions in presidential decision making a president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately these are the considerations justifying a presumptive privilege for presidential communications this privilege is fundamental to the operation of

government and inextricably rooted in the separation of powers under the constitution that's a strong statement and you can bet that the Bush administration has quoted it directly because that was legal precedent in 1974 and they're going to say we can't create energy policy if we have open doors because then all the environmental groups and all of the development groups and all of the states and everybody who has an interest in this will be intruding upon this we have to have the presumptive privilege of privately protected internal conversations to create energy policy and well one one likes that and respects the doctrine involved in it one also has to suggest that it's only the appearance it's only the appearance of misdoing misdeed that prompts you know that prompts that sort of a request in the first place were the vice president not himself benefiting from the from the energy industry one one would look differently perhaps at the whole it would be a non-issue in fact it would be it wouldn't have even gotten on the radar would it

Clay well I don't think that this particular issue would have but back during the Gingrich revolution in the mid 1990s as I understand it Republican key committees in the Congress invited lobbyists for tree cutting groups and for other environmentally damaging corporations to come and help rewrite environmental laws and so I mean this should bother one as a citizen irrespective of your environmental feelings to think that paid lobbyists for corporations who benefit from extraction industries would help to write the environmental laws of the United States so I think this would be a controversy in some sense no matter what that is really it's a it's a larger question and it's it's a question that that senator John McCain keeps pointing to how do we create legislation in a society that is as heavily capitalized as this one and and who do you trust do you trust the Sierra Club to write environmental legislation do you trust professors of a non-partisan group of environmental scholars do you trust lobbyists for monsanto or for con agra I mean how do

you decide who is an expert when you come to write extremely complex legislation in a free culture I think you need checks and balances there just as surely as you needed in government and I think that may be the argument of those who would like to know who these people were and what it was they decided what did they indeed represent the whole spectrum or did they just represent those who would extract in any price well here's what I think is so interesting about this bill crystal in I remember 1974 and so do you we were a young man then and Richard Nixon knew that if he turned over the tapes he would probably not survive as the president of the United States the Supreme Court in the case Nixon v United States 1974 demanded that he turn over the tapes Richard Nixon could easily have burned the tapes or refused to turn them over and he might have survived he certainly couldn't have had any worse a fate than the one that he had and he wouldn't have ever we wouldn't have ever known of the smoking gun conversations that occurred

about watergate and other malfeasance but because our reverence for the law in this country is so high even the corrupt self-serving Richard Nixon when push came to shove complied with the instruction of the Supreme Court I mean that was one of the most amazing days in American history because it showed that the rule of law is so important here that someone will in a sense commit political suicide in order to comply with that law I think that was an astonishing single moment and I recently heard one of the key aides of that air say I advised him to burn the tapes you know he might have just squeaked by but he didn't he supplied them I think here's what I think is surprising and I and I don't know whether this is true or not in time we'll tell but it would not surprise me one bit if given that the Supreme Court say orders the Bush administration to reveal the minutes of these key meetings that occurred on energy policy it would not surprise me one bit if the Bush administration refuses to comply and says sorry we're not going

to abide by the precedent set by Richard Nixon we believe that separation of powers is so important that we are going to defy the order of the court and it would be very interesting from a constitutional point of view to see that happen I do believe that there would be some significant justice on the size of the administration for refusing to comply and I but I think that it would create an outcry of unbelievable proportions in this country if it occurred do you think so yes or do you think this country is so polarized already that 50 percent of the people would say this is a president being besieged by you know by forces from the left represented by the Supreme Court of the United States a vast left-wing conspiracy a vast left-wing conspiracy well there's several problems with that one is that the the court in in Nixon v the United States 1974 made its decision and a Republican administration backed by Republican pressures from Congress complied and secondly it would seem to be ironic if the if the court decides against the

administration that's the same court that installed the administration in the year 2000 it can hardly be called an anti-administration court indeed indeed although one justice I guess has had to recuse himself because he went duck hunting with the vice president no he refuses to recuse himself yes justice Scalia said in one of the most astonishing documents of our time he wrote a memo saying that something to this effect that we people of the inner circle of the elites of the United States have to do we we golf with each other and go to the same cocktail parties and see each other all the time at all the same events and of course we're way too independent and intelligent to allow that to cloud our judgment so that we couldn't do businesses in the country if we elites had to recuse ourselves every time we had had a duck hunting experience with some other elite he said the common people can't understand this because they have a sweet but naive notion of of conflict of interest but we who really hold power and deserve to hold power are well aware of how to maintain our independence now what would miss he should be impeached what would

Mr. Jefferson say he would say impeach that bomb because that said not only are the elites entitled to the appearance of conflict of interest but it also said that the little people meaning 288 million little people can't understand this this doctrine of how how very powerful and famous men can go to the same parties and not be clouded in their judgment now those who would argue that that these people do become clouded by virtue of associating only with one another and not with the little people might might be drawing a you know might be drawing a an arrow or two to fire you know to fire in that direction it's a we're living through a strange time you know when I read that memo by Scalia I thought if we were still a republic this man would be a plumber by next week Thursday but he's he gets away with it and we we've all somehow we're hanging our head and accepting that this country is really governed by a small core of elitists and not and not particularly Rayal Politek elitists at that we're listening to the Jefferson

hour and you're going to read a letter Thomas Jefferson wrote it's one of our new program features to have a letter that we feature every week that's on target on on on focus and then our producer also goes back to the to the rich vein of contemporary comments on Jefferson and finds one that's appropriate to our conversation each week so those are two new features which we're quite proud of and and they'll be regular features of the Jefferson hour the letter that we're looking at this week is on judicial review funnily enough it was written by Jefferson to judge Spencer Rohn who is a justice in the Virginia courts and this was popular for us Jefferson's retreat home he wrote it on September 6th 1819 and here's what he said about judicial review listen to this this is sort of classical Jefferson doctrine I'm quoting from the letter not all of it in denying they agreed on that judicial review can go too far in denying the right they the judicial branch you serve of exclusively explaining the constitution I go further than you do says Jefferson if I understand rightly your quotation for intending to establish three departments coordinate an independent that

they might check and balance one another it has given according to this opinion to one of them alone the right to prescribe rules for the government of the others in other words we've gone too far in giving judicial independence and to that one the judicial branch which is unelected by an independent of the nation for experience has already shown that the impeachment it is provided in these cases is not even a scarecrow that such opinions as the one you combat sent cautiously out as you observe also by detachment not belonging to the case often but sought for out of it in other words obiter dicta things that aren't even in part of the main decision as if to rally the public opinion beforehand to their views and to indicate the line they are to walk in have been so quietly passed over as never to have excited animate version even in a speech of any one of the body entrusted with impeachment in other words that whatever since objecting to bill is the slioness of judicial decisions it's not a law passed by congress that has to be published there's a certain sly underground quality to them and yet they have enormous power he says

concluding the constitution on this hypothesis is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please it should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also in theory only at first while the spirit of the people is up but in practice as fast as that relaxes independence can be trusted nowhere but with the people in mass they are inherently independent of all but moral law my construction of the constitution is very different from that which you quote interesting letter 1819 to Spencer Rowan by the former president of the United States Thomas Jefferson another fabulous edition of the Thomas Jefferson hour we will return next week but thank you very much clay for taking a look at a contemporary issue as mr. Jefferson and giving us new food for thought good to see you my friend bill crystal see you next week good day Thomas Jefferson and John Adams will be appearing together on July 17th 2004

at the Squaw Valley Congregational Church their topic will be war and peace for ticket information please call our office 1-888-458-1803 music for the Thomas Jefferson hour was provided by Stephen Swinford of Reno and Nevada you can visit mr. Jefferson's home page on the worldwide web at www.dhhyphenjeverson.org again our website is www.dhhyphenjeverson.org to ask mr. Jefferson a question or to donate nine dollars and receive a copy of today's program on cd or cassette please call 1-888-458-1803 the Thomas Jefferson hours produced by High Plains Public Radio and new Enlightenment Radio Network a non-profit organization dedicated to the search for truth and the tradition of Thomas Jefferson