Sadly, modern Americans seem to have done a better job preserving what Thomas Jefferson has left us in bricks and mortar than we have preserving his ideas. Tourists visiting Charlottesville, Virginia, can witness firsthand the ongoing efforts to preserve Jefferson’s home at Monticello as well as his splendid little “Academical Village,” the Lawn, which is still a vital center of student life at the University of Virginia. Further down the road, near Lynchburg, Virginia, preservationists have begun restoring Poplar Forest, Jefferson’s retreat home. Scholars have been less successful in keeping alive his philosophy, particularly his ideas about government — despite the copious record he left in his writings. Ken Burns’s recent PBS documentary, Thomas Jefferson, is a case in point. It features a parade of scholars who simultaneously declare their own inability to understand Jefferson, and mislead others with interpretations of his life and thought that are as questionable as they are contradictory. Burns informs the viewer, for example, that Jefferson’s life was full of contradictions: the “man of the people” with the tastes of an aristocrat, the natural rights philosopher who owned slaves, the “lifelong champion of small government who more than doubled the size of the United States,” and so on.
Most of these alleged contradictions really aren’t as antithetical as they appear, for they are based on faulty assumptions or misunderstandings of principles. Joseph Ellis, for example, reasserts the bromide — common among modern “liberal” academics — that the ideals of equality and the pursuit of happiness, as expressed in Jefferson’s Declaration of Independence, are unattainable or contradictory. But there’s nothing contradictory about equality of rights and each individual’s pursuit of happiness, if the concept of rights is properly understood. Herbert Spencer’s law of equal freedom, the radical Whigs’ concept of “natural liberty,” and Jefferson’s concept of “natural society” all accounted for how the two can work together. The fact that many of today’s intellectuals simply don’t get it reveals much more about them than it does about Jefferson. Misinterpretations of Jefferson’s political thinking seem pandemic these days. The 1993 celebrations of the 250th anniversary of Jefferson’s birth, for example, typically championed his reputation as “father of American democracy.” Chief Justice William Rehnquist, speaking at the University of Virginia, echoed the views of many Jefferson scholars that “the permanence of Jefferson resided not in his specific theories or acts of government, but in his democratic faith.” While it is certainly true that Jefferson was a leading proponent of representative democracy — in Democracy in America , Alexis de Tocqueville called Jefferson “the most powerful advocate democracy has ever sent forth” — his devotion to democracy was neither absolute nor unqualified. Indeed, Tocqueville thought it significant that Jefferson once warned James Madison that “the tyranny of the legislature” was “the danger most to be feared” in American government. To Jefferson, democracy and its associated principles — majority rule, equal rights, direct representation of the people in government — were valuable, not as ends in themselves, but as essential means to a greater end, the maximization of individual freedom in civil society. Liberty was Jefferson’s highest value; he dedicated his life to what he once called “the holy cause of freedom.”1 What repeatedly drew Jefferson away from his tranquil domestic life at Monticello and back into the political fray was precisely that “holy cause of freedom,” to which he felt duty-bound whenever he saw liberty threatened by a powerful central government — whether it was the British government under King George III or the United States government under Federalist administrations. His passion for this cause was reflected in the language that he used in his political writings. Jefferson, the zealous defender of religious freedom, tended to use words such as holy, orthodox, or catholic when discussing political, not religious, principles; he reserved words such as heretic or apostate to denounce politicians whom he regarded as the enemies of liberty. He summed up his life’s work in a letter written relatively early in his public career, in 1790, soon after his return to the United States following his ambassadorship to France. “[T]he ground of liberty is to be gained by inches . . . [W]e must be contented to secure what we can get from time to time, and eternally press forward for what is yet to get. It takes time to persuade men to do even what is for their own good.”2 Jefferson’s philosophy of government, accordingly, stressed the perpetual need to limit government’s powers. As he once wrote, “The natural progress of things is for liberty to yield and government to gain ground.”3 The notion that government inevitably threatened liberty was part of the radical Whig tradition in which Jefferson’s early intellectual life had been steeped. Like John Locke, Algernon Sidney, and other English radical Whig political philosophers, Jefferson understood, paradoxically, that it was government, which was created to “secure” individual rights, that posed the greatest danger to those rights through the abuse of its legitimate powers. Hence Jefferson, like other “Whigs” of his time — and like the classical liberals of the nineteenth century — was profoundly distrustful of concentrated political power and intensely devoted to the ideals of limited government and the rule of law. To Jefferson, the significance of the American Revolution was the opportunity it gave Americans to create a republican form of government — that is, a government not only founded in theory upon the consent of the governed, but one that was continually responsible to the will of the people — “the only form of government which is not eternally at open or secret war with the rights of mankind,” he maintained. He understood the American constitutions, state and federal, to implement in practice the theory of government he so eloquently presented in his original draft of the Declaration of Indepen-dence, where he stated the “self-evident” truths that all men are created “equal & independent,” that from that equal creation they derive “rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness,” and that “to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed.” The creation of republican governments alone, however, was not sufficient to guard against abuses of power. Jefferson also understood the value of devices such as written constitutions, the division and separation of powers, and the people’s power to amend constitutions. The fundamental principle of his constitutionalism was most cogently expressed in his draft of the Kentucky Resolutions (1798), where he wrote: [C]onfidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power. . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. Zealously guarding liberty, Jefferson was suspicious of the use of governmental power. He feared that without the rule of a higher law, the achievement of the American Revolution would be lost. The governments in Europe “have divided their nations into two classes, wolves and sheep.” If the people of America once become “inattentive to the public affairs,” he warned, “you and I, and Congress, and Assemblies, judges and governors shall become wolves. It seems to be the law of our general nature, in spite of individual excep-tions.”4 Like Thomas Paine, who in Common Sense had distinguished government and society, Jefferson understood that the realm of politics was quite limited; outside it, individuals should be free to fashion their lives as they saw fit, through voluntary social relationships. The “essence of a republic,” he wrote, was a system in which individuals “reserve to themselves personally the exercise of all rightful powers to which they are competent,” delegating others to their “representatives, chosen immediately, and removable by themselves.” He believed this “proximate choice and power of removal” was “the best security which experience has sanctioned for ensuring an honest conduct in the functionaries of society” — in other words, for preventing those in power from becoming “wolves.” The Declaration of Independence listed three natural, or “inalienable,” rights: life, liberty, and the pursuit of happiness. Elsewhere in his writings Jefferson referred to others: expatriation, religious freedom, freedom of trade, and the right to hold property. All these rights might be understood as particular manifestations of one basic natural right, liberty, which Jefferson regarded as sacrosanct as life itself: as he wrote in his 1774 essay, A Summary View of the Rights of British America , “The god who gave us life, gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.” Jefferson regarded as a basic principle of good government the guarantee to all of the enjoyment of these rights. In 1816, discussing the “rightful limits” of legislators’ power, he maintained that “their true office is to declare and enforce only our natural rights and duties, and to take none of them from us”: “No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third.” He added that “when the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right.”5 Two years later, in a report which he prepared as chairman of the Commissioners for the Univer-sity of Virginia, Jefferson included in his syllabus of the basic principles of government “a sound spirit of legislation, which, banishing all arbitrary and unnecessary restraint on individual action, shall leave us free to do whatever does not violate the equal rights of others.” Fundamental to Jefferson’s political philosophy, then, was the idea that no government could legitimately transgress natural rights. In order for law to be binding, it must not only proceed from the will of properly authorized legislators, but it must also be “reasonable, that is, not violative of first principles, natural rights, and the dictates of the sense of justice.” In the final paragraph of his Virginia Statute of Religious Freedom, for example, Jefferson added a declaration that the rights therein asserted were “the natural rights of mankind,” and that although the legislature which enacted the Bill had no constitutional power to restrain subsequent legislatures, any future act repealing it or narrowing its operation would be “an infringement of natural right.” The institution of slavery was so troubling to Jefferson, throughout his life, because he realized that it violated the natural rights of an entire race of people. That Jefferson owned slaves himself, knowing all too well the evils of the institution that he so frankly described in his Notes on the State of Virginia , was the greatest flaw of his private life; the philosopher of the American Revolution, the greatest liberating event in the history of the world, personally participated in what John Hope Franklin calls in Burns’s film “a transgression against mankind.” And that Jefferson abandoned his early zeal for emancipation (his praiseworthy efforts to abolish slavery in Virginia, which culminated in his writing the Northwest Ordinance prohibition on slavery), and instead acquiesced in the continued existence of slavery — as well as its spread to other territories in the West — unmistakably was the greatest flaw of his public life. Like so many others, Burns distracts us from the real tragedy of Jefferson’s position on slavery by focusing on the myth that Jefferson fathered children by his slave, Sally Hemings. The claim is based on an oral tradition kept alive among Hemings’ descendents — dubious evidence, not only because it is self-serving and unreliable, but also because of its use as political propaganda, first by Jefferson’s Federalist enemies and later in the nineteenth century by antislavery Whig and Republican politicians who sought to discredit Jefferson and the antebellum Democratic party. (Today the story is still kept alive to push others’ political agendas.) Virtually all reputable Jefferson scholars agree that there is no contemporary evidence of any sexual relationship whatsoever between Jefferson and Hemings, but few are willing to dismiss the allegation as a myth, for fear of being called racist. So, like the historians interviewed in Burns’s film, “politically correct” white scholars hedge a bit, saying “we don’t know” the truth. If we set aside the Hemings family’s tradition as the myth that it is, it appears most likely that Sally Hemings’ children were fathered by either Peter or Samuel Carr, Jefferson’s nephews and wards, raised by him at Monticello as if they were the natural sons that he never had. His nephew’s abuse of a young slave girl on Jefferson’s mountain was no less scandalous to Jefferson and his family than if he himself had perpetrated the abuse — which explains, in part, why Jefferson’s only response to the allegations was silence. But it speaks volumes about the extent to which slavery not only debased the slave but also corrupted the morals of the master, as Jefferson himself had observed in Notes on the State of Virginia : “The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the [one] part, and degrading submission on the other.” That this “rottenness” had set in within his own family, and that Jefferson had been powerless to prevent it and even unwilling to acknowledge it, is the real story that remains untold. Another myth about Jefferson that Burns perpetuates is his supposed agrarianism. Jefferson’s vision of America’s future, on this view, was of an “agrarian paradise” — implying that Jefferson’s small-government philosophy was appropriate only for the pre-industrial America of the early nineteenth century, a convenient rationalization that apologists for the modern regulatory-welfare state have been asserting since Woodrow Wilson’s “New Freedom” speech in 1913. In the 1780s, when Jefferson wrote his much-quoted statements about farmers being the most “virtuous” citizens, he was essentially agrarian in outlook. But after the War of 1812, Jefferson realized that America needed also to be a manufacturing nation, and his political economy matured into a full acceptance of market capitalism. In the 1810s Jefferson experienced an awakening when he read the Treatise on Political Economy by the French anti-mercantilist philosopher Antoine Louis Claude Destutt de Tracy, who, among other things, regarded the productive value of the trader or manufacturer as equal to that of the farmer; defended the rights of industrious persons to seek profits as “rewards for their talents”; and viewed commerce generally as the “fabric” of society. Jefferson was so enthusiastic about Tracy’s treatise that he personally undertook the task of translating it into English, so that it could be used as the basic economics text in American universities. But this profound evolution in Jefferson’s ideas about political economy is utterly ignored in Burns’s documentary, as it generally is in high-school and college textbooks. To Jefferson, religion was a matter of conscience, a private matter that ought not concern government. For that reason, he joined his friend and collaborator, James Madison, in calling both for the free exercise of religious beliefs and for a strict avoidance of government “establishment” of religion. “The opinions of men are not the object of civil government, nor under its jurisdiction,” his original text declared. As he explained the purpose of the Virginia Statute in Notes on the State of Virginia , “Our rulers can have authority over such natural rights only as we have submitted to them,” noting that “the rights of conscience we never submitted, we could not submit” because men are answerable for them to God only. “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” When Jefferson wrote to Madison late in 1787, expressing his great disappointment that the new federal Constitution included no explicit guarantee of rights, the first such right that he listed was freedom of religion. He surely had in mind the kind of broad statement of “natural right” expressed in his Virginia Statute, which provided that “no man shall be compelled to frequent or support” any religion, nor any “suffer, on account of his religious opinions or belief,” and that “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capabilities.” Although the language finally adopted by Congress in proposing what would become part of the First Amendment — stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” — was far less explicit than the language of the Virginia statute, Jefferson interpreted it to be just as comprehensive a guarantee. In other words, he understood the First Amendment freedom of religion clause, like the Virginia statute, to leave the formation of religious opinions solely to “the reason of man.” As president, Jefferson faithfully adhered to this principle and to his broad view of the rights guaranteed by the First Amendment. He departed from the precedent set by his predecessors, Washington and Adams, by refusing to recommend or designate any day for national prayer, fasting, or thanksgiving. As he explained his policy, in a letter made public early in his presidency, he noted that since Congress was prohibited by the First Amendment from acts respecting religion, and the president was authorized only to execute its acts, he had refrained from prescribing “even occasional performances of devotion.” In famous words, he declared that the First Amendment mandated a “wall of separation between Church and State.”6 Collaborating again with James Madison in 1798, Jefferson opposed as unconstitutional the Sedition Act, which had made it a criminal offense to make any “false, scandalous, and malicious” statement against either President John Adams or the Federalist-controlled Congress. If Jefferson was — as some critics have charged, both in his time and today — less than fully libertarian in his defense of freedom of the press in the years that followed his election in 1800, it was because he was deeply troubled by what he perceived as the “licentiousness” of the press of his time. During his presidency he expressed concern that his Federalist opponents were “pushing its [the press’s] licentiousness and its lying to such a degree of prostitution as to deprive it of all credit.” This was, he had noted, “a dangerous state of things” because “even the least informed of the people have learnt that nothing in a newspaper is to be believed.” To another correspondent he bemoaned the fact that “nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle.”7 Despite his belief in the efficacy of state laws against false and defamatory publications, it is important to note that, as president, Jefferson consistently followed a “hands-off” policy, as required by the First Amendment. In his Second Inaugural Address, he explained his administration’s policy as an “experiment” that had been “fairly and fully made” to determine “whether freedom of discussion, unaided by power, is not sufficient for the propagation and protection of truth.” The press, “confined to truth, needs no other legal restraint,” he maintained. “The public judgment will correct false reasonings and opinions, on a full hearing of all parties; and no other definite line can be drawn between the inestimable liberty of the press, and its demoralizing licentiousness. If there be still improprieties which this rule would not restrain, its supplement must be sought in the censorship of public opinion.” The Second Inaugural, then, did more than reiterate Jefferson’s steadfast denial of federal authority over freedom of the press: it revealed that, when pressed to draw a line between “the inestimable liberty” and the “demoralizing licentiousness” of the press, Jefferson came down on the libertarian side. He would leave to the marketplace of ideas, and ultimately to “the censorship of public opinion,” the restraint of falsehoods. Jefferson took very seriously the “chains of the Constitution.” These included not only the enumeration of powers in the main text of the Constitution and the specific limitations on powers found in the Bill of Rights, but also two other devices to keep powers restrained by dividing them: federalism, which divided powers between the states and federal government; and the separation of powers, which divided federal powers among the three branches, legislative, executive, and judicial. Federalism was, to Jefferson, the “true theory of our constitution”; and in a classic statement, made shortly before he was elected president, he described it thus: The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization and a very unexpensive one — a few plain duties to be performed by a few servants.8 In Jefferson’s view, the whole field of government in the United States was divided into two departments, “domestic” and “foreign,” each department having “distinct directories, coordinate and equally independent and supreme, in its own sphere of action.” To the state governments were reserved “all legislation and administration, in affairs which concern their citizens only”; to the federal government was given “whatever concerns foreigns, or the citizens of the other states.” The “foreign,” or federal, sphere, moreover, was strictly limited to the few functions enumerated in the Constitution. Nothing better illustrates Jefferson’s strict interpretation of federal powers under the Constitution than his 1791 opinion on the constitutionality of a bill to establish the Bank of the United States. Jefferson considered the Tenth Amendment, which provided that “all powers not delegated to the U.S. by the Constitution, not prohibited by it to the states, are reserved to the states or to the people,” to be “the foundation of the Constitution.” It reiterated the general principle of federal powers expressed by the language of Article I: that the legislative powers of the federal government, vested in the Congress of the United States, were limited to those “herein granted” in the Constitution. “To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” The rest of Jefferson’s opinion shows what he regarded those “boundaries drawn about the powers of Congress” to be: they were expressed in Article I, the enumerations of Congressional power, construed (as Jefferson would later put it) “according to the plain and ordinary meaning of its language, to the common intendment of the time and those who framed it.”9 “The incorporation of a bank, and other powers assumed by this bill, have not . . . been delegated to the U.S. by the Constitution,” Jefferson concluded, arguing that they were neither “among the powers specially enumerated” nor “within either of the general phrases” of Article I, the “general welfare” and “necessary and proper” clauses. He understood the “general welfare” clause to be a statement of the purpose for which the specific power of laying taxes was to be exercised, not a grant to Congress of “a distinct and independent power to do any act they please, which might be for the good of the Union.” To interpret it as the latter, Jefferson observed, “would render all the preceding and subsequent enumerations of power completely useless” as it would, in effect, “reduce the whole instrument to a single phrase,” of empowering Congress to do whatever it pleased. Similarly, he took quite literally the word “necessary” in the “necessary and proper” clause. The Constitution, he argued, restrained Congress “to the necessary means, that is to say, to those means without which the grant of the power would be nugatory”; otherwise, the “necessary and proper” clause also “would swallow up all the delegated powers, and reduce the whole to one phrase.” Jefferson’s opinion on the constitutionality of the bank bill thus presented a theory of strict interpretation of the Constitution. To say that Jefferson was a literalist or a strict constructionist, however, is insufficient. Although he was a “strict constructionist” with regard to most of the powers granted Congress in Article I, section 8, especially where federal powers could pre-empt state law, he could interpret federal powers under the Constitution quite liberally in matters involving foreign affairs, which he regarded as an exclusive responsibility of the national government since the time of the Articles of Confederation. (Hence, in his second term as president, he enforced one of the most draconian laws ever passed by Congress — at least prior to the Civil War — the Embargo, which curtailed virtually all foreign trade in a futile attempt to keep the United States out of the war between Britain and France.) He also could be quite liberal in interpreting power-restraining or rights-guaranteeing provisions of the Constitution, as his interpretation of the First Amendment religion clause demonstrates. Upon becoming president in 1801, Jefferson reiterated his ideal of a federal government limited to its legitimate powers assigned by the Constitution: a government reduced to “a few plain duties performed by a few servants.” His Inaugural Address declared his general support for the idea of “a wise and frugal government, which shall restrain men from injuring one another, [but] which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.” More specifically, in his first annual message, in December 1801, he declared that it was his administration’s policy “to reduce expenses to what is necessary for the useful purposes of government,” and he described those concerns that he considered appropriate for the federal government. “When we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote.” Jefferson’s administration pursued a policy of economy in government, drastically reducing the size of the federal payroll while simultaneously repealing all internal taxes, including Alexander Hamilton’s hated excise on whiskey. Abolition of internal taxes made possible the elimination of the internal revenue service employed to collect them; this resulted in a significant decrease in the Department of Treasury, by far the largest of the executive departments. Jefferson also recommended reductions in the army, the navy, and the diplomatic corps. In addition to the repeal of internal taxes and drastic reductions in federal expenditures, Jefferson also enthusiastically endorsed the plan prepared by his Secretary of the Treasury, Albert Gallatin, to pay off the entire national debt — some $83 million — within sixteen years by annual appropriations of $7,300,000. Believing it wrong for the present generation to saddle future generations with a huge national debt, Jefferson sought to establish the principle of “pay-as-you-go” in the federal budget. During the eight years of Jefferson’s administration the debt actually was reduced by almost a third; extraordinary expenses not foreseen at the beginning of his presidency — chiefly, the Louisiana Purchase and increased naval costs associated with the Barbary Wars — forced the modification of Gallatin’s plan. Nevertheless, the plan to extinguish the debt was largely successful because of the large increase in revenue from import duties that accompanied the growth in American commerce during this period. Indeed, the increased revenues actually created a surplus later in the administration, prompting Jefferson to recommend a constitutional amendment permitting expenditures for roads and other improvement projects, as noted below. After his retirement from the presidency, Jefferson urged continued effort to pay off the debt by reducing federal expenditures, noting that increased public debt would bring increased taxation “and in its train wretchedness and oppression.”10 As president, Jefferson thus sought to accomplish the objective he had stated in his First Inaugural Address and reiterated elsewhere in his writings at the start of his presidency: to restore the constitutional equilibrium between the states and federal government by keeping the latter “a wise and frugal government” limited to its sphere. Later in his presidency, when he recommended that Congress appropriate money for such projects as establishing a national university, construction of roads and canals, and improvements to rivers and harbors, Jefferson called for a constitutional amendment to authorize such expenditure because these projects were not among the enumerated powers of the federal government. Critics of Jefferson, both past and present, have cited the Louisiana Purchase as an example of Jefferson’s failure, as president, to adhere consistently to his doctrine of strict interpretation of federal powers. Rather than showing his hypocrisy, however, the entire episode of the Louisiana Purchase illustrates the seriousness of Jefferson’s constitutional scruples. Jefferson understood the importance of the Purchase: it secured New Orleans and control of the Mississippi and was therefore vital to the interests of the United States. Although Albert Gallatin presented Jefferson with arguments supporting the constitutionality of the Purchase, Jefferson remained sufficiently troubled to draft a constitutional amendment explicitly making the Louisiana territory part of the United States. No important adviser or supporter of Jefferson apparently urged either the necessity or the practicality of such a constitutional procedure, however. Indeed, Jefferson’s close friend Senator Wilson Cary Nicholas argued strongly against it, saying that a declaration from Jefferson that the treaty exceeded constitutional authority would lead to its rejection by the Senate or at least to the charge of his willful breach of the Constitution. Jefferson’s reply to Nicholas’s letter, stating in particularly striking terms his lingering constitutional scruples, has been one of the most often quoted of Jefferson’s writings on constitutional matters: When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. Conceding the likelihood that the framers’ enumeration of powers was “defective” — for “this is the ordinary case of all human works” — he urged, “Let us go on then perfecting it, by adding by way of amendment to the constitution, those powers which time & trial show are still wanting.” In the present case, he concluded, it was “important . . . to set an example against broad construction by appealing for new power to the people.”11 When Jefferson finally dropped the matter and acquiesced in the Louisiana Purchase despite the lack of a constitutional amendment, he did so not because he had given up strict construction but because he was following his advisers’ recommendation not to press the constitutional problem, realizing that it could jeopardize a treaty so vital to the nation’s security. “What is practicable must often control what is pure theory; and the habits of the governed deter mine in a great degree what is practicable,” he noted. Jefferson took solace in what he regarded as the “good sense” of the people, not to permit this one precedent to destroy the whole edifice of enumerated powers upon which constitutional limitations on the federal government rested. Indeed, a common-sense resolution of his constitutional qualms was suggested by Thomas Paine, who reassured Jefferson that “the cession makes no alteration in the Constitution; it only extends the principles over a larger territory, and this certainly is within the morality of the Constitution, and not contrary to, nor beyond, the expression of intention of any of its articles.” If a new power had been added by construction to those powers assigned by the Constitution to the federal sphere, it was only the power to add to the domain of what Jefferson aptly called the “empire for liberty.”12 The fact that, despite these assurances, Jefferson remained troubled about his constitutional scruples — for years after his presidency — only underscores the degree of his scrupulous regard for the “chains of the Constitution.” Unable to square the acquisition of Louisiana and its incorporation into the Union with his theory of federal powers, Jefferson came to regard it as an extraordinary action of executive prerogative — he, as president, going beyond the strict limits of the law, for the good of the country. Even then, he still hoped for an “act of indemnity” by the nation, one that “will confirm & not weaken the Constitution, by more strongly marking out its lines.” With regard to the proper allocation of federal powers, Jefferson took equally seriously the principle of separation of powers. It is a mistake to try to label Jefferson’s presidency as either “strong” or “weak.” Where the Constitution assigned powers exclusively to the president, Jefferson vigorously exercised them; where powers were assigned to or shared with other branches, however, Jefferson both preached and exercised strict restraint. Unlike modern presidents, who assert the power as commander-in-chief to send U.S. armed forces anywhere in the world without the consent of Congress, Jefferson was respectful of Congress’s war power. When U.S. ships fought against pirates in the Mediterranean, Jefferson — recognizing that the Constitution gave Congress alone the power to declare war — publicly took the position that until Congress authorized offensive measures, the Navy could engage only in defensive actions.13 His position — which modern commentators consider one of the most restrictive interpretations of executive war powers ever uttered by an American president — showed that he wished the decision committing American naval forces to hostilities in the Mediterranean to be not a unilateral one, but one in which Congress shared. Jefferson also held a quite narrow view of the executive power. On one occasion he wrote, “I am but a machine erected by the constitution for the performance of certain acts according to the laws of action laid down for me.”14 In his view, executive power was limited both by constitutional restraints and by law. As president, Jefferson sought to keep his constitutional distance from the Congress. He could hardly have done otherwise without opening himself to charges of hypocrisy (by his enemies) or charges of backsliding (from his friends), for the Republicans in the 1790s had been sharply critical of what they perceived as Federalist attempts to institute an English monarchical and ministerial system. Consequently, early in his administration, Jefferson declared that he would abandon “all those public forms and ceremonies which tended to familiarize the public idea to the harbingers of another form of government.” These included the annual speech to Congress, which to Jefferson was too reminiscent of the king’s opening of Parliament. In sending a written message rather than delivering it in person, he broke with the precedent that George Washington had set and started a tradition that lasted more than a century. Not until Woodrow Wilson did presidents deliver their state of the union addresses in person. The modern spectacle — with both houses of Congress assembled in the House chamber in wait on the president, whose presence is loudly announced and greeted with two separate standing ovations — would have appalled Jefferson. In at least one area, however, Jefferson was a “strong” president: in his assertion of his equal power — equal with the other two branches of the federal government, particularly the Supreme Court (dominated at the time by Federalists) — to interpret the Constitution. The constitutional theory that scholars have called Jefferson’s “tripartite” doctrine was fully developed in Jefferson’s mind by the time of his presidency. He explained his doctrine in a letter written to Abigail Adams in 1804, defending his actions in discontinuing prosecutions and pardoning offenders under the Sedition Act: You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. The Constitution, he concluded, “meant that its co-ordinate branches should be checks on each other.” Accordingly, to give the judiciary the right to decide questions of constitutionality “not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.”15 Jefferson had seemed not at all troubled by the fear of conflicts arising from the departments’ divergent interpretations of the Constitution. In part, this may have been due to the fact that, in Jefferson’s day, for all practical purposes, the legislature and the executive continued to determine for themselves whether or not they were acting within the bounds of the Constitution. If a truly difficult conflict arose between two or more branches, it could be resolved by the ultimate arbiter of constitutional questions — the people, acting in their elective capacity. By periodically choosing officers for two of the three departments of national government, the people, Jefferson believed, have an opportunity to “reintegrate” the Constitution, by demonstrating their approval or disapproval of those branches’ interpretation of it.16 Though not an advocate of “frequent and untried changes in laws and constitutions,” Jefferson nevertheless refused to look at constitutions with “sanctimonious reverence . . . like the ark of the covenant, too sacred to be touched.”17 Accordingly, he favored revisions of laws and constitutions, as the needs arose. His view was clearly distinct from that of Chief Justice John Marshall, who in his famous opinion in McCulloch v. Maryland argued that the Constitution was “intended to endure for ages to come” as a rationalization for the expansion of federal powers by judicial interpretation. Jefferson, with his Whig heritage of distrust of law and government, looked to the people rather than to the courts when he thought of adapting the Constitution, or of determining the application of its provisions, to new circumstances. Always suspicious of men in power, Jefferson was particularly reluctant to entrust so important a role as the interpretation of the federal Constitution to any one body of men — especially to a Supreme Court dominated, as it then was, by John Marshall. Hence he preferred that constitutional difficulties remain unresolved, or that the mode of resolving them remain awkward and uncertain, than that mutual jealousies give way to confidence in the government at Washington. In the early 1820s, during the Virginia campaign against the claim that the United States Supreme Court was the ultimate arbiter of constitutional questions, Jefferson again emphasized the role of the people themselves. As he wrote one correspondent in 1820, “I know no safe depository of the ultimate powers of the society but the people them selves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”18 The notion that control by the people over their government, according to their own “wholesome discretion,” informed by education, constituted the “true corrective” of abuses of power is distinctively Jeffersonian. Indeed, the emphasis that Jefferson placed on popular participation and control — making the people themselves a vital element in constitutionalism — was the pre-eminent hallmark of Jefferson’s constitutional thought. None of his contemporaries, with the possible exception of John Taylor of Caroline, quite so emphasized this element. It in fact underlay many of the other aspects of his constitutional thought. Both the pure theory of separation of powers as well as the theory of federalism that Jefferson espoused were ultimately derived from his thoroughgoing republicanism: with each branch of the federal government, and with each state in the Union, determining constitutional questions, potentially in conflict with one another, some common ground was necessary; and that common ground — in effect, the glue that held Jefferson’s constitutional system in place — was in fact the active participation of the people.19 This explains Jefferson’s lifelong emphasis on the importance of education as well as his support for a system of public schools. The purpose for his “Bill for the More General Diffusion of Knowledge,” as he explained it in Notes on the State of Virginia, was that of “rendering the people . . . the ultimate guardians of their own liberty.” “Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories. And to render even them safe their minds must be improved to a certain degree.” Jefferson’s bill sought to do so by giving all citizens a basic schooling in reading, writing, and history. The emphasis on historical education was quite deliberate, Jefferson explained: History by apprising them of the past will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views. Beyond this basic schooling, the best students — the “natural aristocracy,” determined by merit, or “genius” — would receive advanced training at the institution to which he devoted the final years of his life, the University of Virginia, where he hoped the “vestal flame” of republicanism would be kept alive. In later years Jefferson coupled his support of public education with one other proposal, which he considered equally necessary to the preservation of republicanism: his proposed system of local government by “little republics,” or wards. His proposal was to divide the counties into wards of such size that every citizen can attend, when called on, and act in person. “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing & concentrating all cares and powers into one body.” The “secret” of maintaining freedom, he suggested, was to make the individual alone “the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence by a synthetical process, to higher & higher orders of functionaries, so as to trust fewer and fewer powers, in proportion as the trustees become more and more oligarchical.” This system of republics would become a vital element of constitutionalism. “Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day; when there shall not be a man in the State who will not be a member of some one of its councils, great or small, he will let the heart be torn out of his body sooner than his power be wrestled from him by a Caesar or a Bonaparte,” he also observed.20 Jefferson thus envisioned that the active involvement of citizens in the government itself would be the most effective check on the abuse of governmental power. An educated, actively involved citizenry would be both self-reliant — managing directly those affairs to which individuals were alone competent — and vigilant, keeping a close watch over their elected officials to whom they had entrusted all other affairs, and making certain that they did not turn into “wolves.” Jefferson’s proposed ward system also gives added meaning to his support for the principle of “rotation in office,” one of whose goals is to increase the level of popular participation in government by mandating turnover. Term limits, as proponents argue today, can break the virtual monopoly that incumbent, professional politicians hold on some offices, and create a way to return to the “citizen-politician” model of the 19th century. The appeal of term limits to modern-day Jeffersonians is exactly the same as its appeal to Jefferson himself: it enhances the possibility that each citizen may become, in his words, “a participator in the government of affairs, not merely at an election one day in the year, but every day.” A full understanding of Jefferson’s ideas regarding constitutional change — and indeed, of his constitutional thought generally — must take into account Jefferson’s dual emphasis on education and participation. The essentially negative view of politics that Jefferson held thus ultimately influenced his constitutional thought in a profound way. Jefferson regarded as truly modest the achievements of his generation, believing that subsequent generations, learning from additional experience, would improve on the founders’ handiwork, with the problem of maintaining a free government becoming far simpler as subsequent generations hit upon better and better solutions. Hence he recommended that every generation create anew their constitutions — a recommendation that reveals both his assumptions that constitution-making was a relatively simple matter and that the people, as a whole, were fully competent to the task. Although he was an eminent member of what Dumas Malone has called the “great generation,” Jefferson disclaimed its greatness. Throughout his life Jefferson deliberately downplayed his public service. For example, in 1800 he drafted a list of his services that emphasized his role in introducing olive trees and upland rice into South Carolina, noting that “the greatest service which can be rendered any country is, to add a useful plant to its culture.” Perhaps Jefferson’s greatest political legacy is the extent to which he devalued politics. During nearly half a century of public service, Jefferson held many high political offices: President of the United States, Vice-President of the United States, Secretary of State, U. S. Ambassador to France, Member of Congress, Governor of Virginia. Nevertheless, he asked to be remembered in his epitaph for only three accomplishments: author of the Declaration of Independence, author of the Virginia Statute of Religious Freedom, and father of the University of Virginia. Liberty and knowledge, not political power, were his highest values. The author of the Declaration of Independence died on July 4, 1826, the fiftieth anniversary of the adoption of the Declaration, the date Americans have chosen for the celebration of the nation’s birthday. Like his fellow Patriot of ’76, John Adams, who also died that day, Jefferson was fully aware of the symbolism; his final words, reportedly, were, “Is it the Fourth?” Significantly, he wrote in his last letter of the libertarian meaning of American independence: “May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.”21
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Bibliography:
notes: 1. Jefferson’s Response to Address of Welcome by the Citizens of Albemarle, February 12, 1790. 2. Jefferson to the Rev. Charles Clay, January 27, 1790. 3. Jefferson to Edward Carrington, May 27, 1788. 4. Jefferson to Edward Carrington, January 16, 1787. 5. Jefferson to Francis W. Gilmer, June 7, 1816. 6. Jefferson to Nehemiah Dodge and others, A Committee of the Danbury Baptist Association, in the State of Connecticut, January 1, 1802 (Draft).
7. See Jefferson to John Norvell, June 11, 1807 (suggesting that editors divide their newspapers into “four chapters” — “Truths,” “Probabilities,” “Possibilities,” and “Lies”).
8. Jefferson to Gideon Granger, August 13, 1800. 9. Jefferson to James Madison, December 24, 1825. 10. Jefferson to Samuel Kercheval, July 12, 1816. 11. Jefferson to Wilson Cary Nicholas, September 7, 1803. 12. Paine to Jefferson, September 23, 1803. 13. Jefferson, First Annual Message, to Congress December 8, 1801. 14. Jefferson to Dr. Benjamin Rush, June 13, 1805. 15. Jefferson to Abigail Adams, September 11, 1804. 16. See Jefferson, First Annual Message to Congress (Draft), December 8, 1801. 17. Jefferson to Samuel Kercheval, July 12, 1816. 18. Jefferson to William Charles Jarvis, September 28, 1820. 19. Cf. Mayer, David, The Constitutional Thought of Thomas Jefferson, Charlottesville: University Press of Virginia, 1994. 20. Jefferson to Joseph Cabell, February 2, 1816. 21. Jefferson to Roger C. Weightman, June 24, 1826.
