Barack Obama has made it clear what sort of people he will seek to appoint to the federal judiciary should he win the presidency in November. No stodgy, unimaginative, restrained, rule-of-law originalists for him. Rather, he promises to seek out nominees who would show great "empathy" for those whom he calls simply the "ordinary people."

His judicial hero, perhaps unsurprisingly, is none other than Chief Justice Earl Warren, a Republican appointee who was clearly in touch with his inner feelings and who usually ruled accordingly. Like Sen. Obama, Warren was not inclined to let the Constitution get in the way of his impulse to do justice.

While this will certainly make the political blood of most Republicans run cold, it would also likely shock and dismay the founder of the senator's own party, Thomas Jefferson. Jefferson was never a friend of unbridled federal judicial power. In this regard, the Illinois senator likely would be the third president's very worst political nightmare.

Jefferson was certainly just as much an advocate of a government that would represent the true interests of "ordinary people" as is Obama. He praised as God's likely "chosen people" those who "labor in the earth," after all. And he founded his political party at least in part to thwart the high-toned Federalists led by the likes of Alexander Hamilton, John Adams, and John Marshall, whom Jefferson accused of serving the interests only of the rich and the well-born. But in Jefferson's view the proper representation of the people was to be found not in the courts but in the legislatures.

From early in his political career, Jefferson feared the dangers of judicial excesses. Far from looking upon judges as political guardians, he saw it as necessary to view any judge in a republic as a "mere machine" -- a view he never abandoned. No less than other public officials, those who filled the bench in his view were expected to be "bound down from mischief by the chains of the Constitution." In Jefferson's constitutionalism there was no room for moral creativity in judging.

To allow judges the discretion to decide cases based on nothing more concrete than "metaphysical subtleties" or their own opinions of what might be morally right would be to empower them to make the terms of the written Constitution "mean everything or nothing," as they might please. Whatever that might be, it was not sound republican government. Indeed, it threatened to be a first step toward tyranny.

Jefferson thought the judges in their interpretations of the Constitution ought to be restrained by the view of the fundamental law that Obama now finds it convenient to dismiss as being "cramped and narrow." Writing late in his life to his first appointment to the Supreme Court of the United States, Jefferson lectured Justice William Johnson that the judges should take their bearings not from anything like their own "empathy" but only from the meaning given to the Constitution at the beginning, a meaning to be found by the judges carrying themselves "back to the time when the Constitution was adopted." If a Constitution of limited and enumerated powers was to be taken seriously, it had to be construed strictly in light of its original intention.

The Constitution could easily be turned into a "mere thing of wax" to be twisted by judges into "any form they please" through interpretation by implication, inference, or simple imposition. To avoid that, it had to be taken seriously as binding law on the basis of its discoverable, knowable meaning. If that meaning once discerned seemed inadequate or unjust, the means of altering it was not by judicial decree but by the formal, if more cumbersome, process of amendment.

One of the great ironies of early American constitutional history is that, for all their mutual animosity -- and it was great, deep, and enduring -- Jefferson and his lifelong constitutional nemesis, Chief Justice John Marshall, were of one mind on the obligations of judges to the law. While they always disagreed as to what was the original meaning and intention of the Constitution's makers (Jefferson insisted it was primarily a confederated republic of near sovereign states, while Marshall believed that the Founders intended a nation in every sense of the word), they both understood, to borrow Marshall's words, that recourse by judges to that meaning and intention was nothing less than the "most sacred rule of interpretation."

While this view might strike contemporary postmodern critics as "cramped and narrow," it struck the founding generation -- Federalists and Republicans alike -- as nothing less than the very essence of the rule of law. It is a view still worthy of regard, as the Democratic nominee's opponents will undoubtedly make clear in the run-up to November.
Gary L. McDowell is a professor of leadership studies, political science, and law at the University of Richmond. Contact him at gmcdowel@richmond.edu.