Jefferson, Thomas (1743–1826)

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JEFFERSON, THOMAS (1743–1826)

Thomas Jefferson, statesman, philosopher, architect, champion of freedom and enlightenment, was United States minister to France when the federal constitutional convention met in 1787. Long an advocate of a strengthened confederation, he applauded the convention and anxiously awaited the result of its deliberations. On seeing the roster of delegates, he exclaimed to his diplomatic colleague and friend john adams, "It is really an assembly of demigods." Jefferson soon made the Constitution the polestar of his politics, aligning its principles with those of aspiring American democracy, with momentous consequences for the future of the republic.

Educated for the law in his native Virginia, tutored by george wythe, young Jefferson was a keen student of the English constitution. Like a good Whig, he traced the venerable rights and liberties of Englishmen back to Saxon foundations. The degeneration under George III turned on the system of minsterial influence to corrupt the Parliament. This upset the balance of king, lords, and Commons upon which the freedom and order of the constitution depended; and it threatened, Jefferson came to believe, tyranny for America. He was thus led in his first published work, A Summary View of the Rights of British America (1774), to repudiate the political authority of the mother country over the colonies. When he penned the declaration of independence two years later, he placed the American claim not in the prescriptive guarantees of the English constitution but on the Lockean ground of the natural rights of man. In recoil from the treacheries of an unwritten constitution, he concluded with the mass of American patriots that a constitution should be written; in this and other ways he sought to secure the supremacy of fundamental law over statutory law, which was the great failure of the English constitution. Finally, Jefferson entered upon the search for a new system of political balance consonant with American principles and capable of breaking the classic cycle of liberty, corruption, and tyranny, thereby ensuring the permanence of free government.

Jefferson's constitutional theory first found expression in the making of the virginia constitution of 1776. In June, while he was drafting the Declaration of Independence for Congress, Jefferson also drafted a plan of government for Virginia and sent it to the revolutionary convention meeting in Williamsburg. The work of framing a new government, he wrote, was "the whole object of the present controversy." In his mind, the relationship of one state paper to the other was that of theory to practice, principle to application. Endeavoring to reach all the great objects of public liberty in the constitution, he included a number of fundamental reforms in Virginia society and government. The constitution adopted at Williamsburg contained none of these reforms, however. Jefferson at once became its severest critic, not only because of its conservative character but also because it failed to meet the test of republican legitimacy. The "convention" that adopted it, as he observed, was the revolutionary successor of the House of Burgesses, elected in April to perform the ordinary business of government. It could not, therefore, frame a supreme law, a law binding on government itself. Jefferson was groping toward the conception of constituent sovereignty, in which the government actually arises from "the consent of the governed" through the constitution-making authority of the people. Thus it was that he proposed a form of popular ratification of the constitution—a radical notion at that time. He also proposed, and included in his plan, a provision for amendment by the consent of the people in two-thirds of the counties. This proposal was unprecedented. Jefferson made the omission of any provision for constitutional change a leading count in his indictment of the Virginia frame of government.

Jefferson returned to Virginia in 1776, served his state as a legislative reformer, then as wartime governor, and reentered Congress in the fall of 1783. Turning his attention to the problems of the confederation, he followed his young friend james madison in advocating the addition of new congressional powers to raise revenue and regulate foreign commerce. He persuaded Congress to try the provision of the articles of confederation for an interim executive in the form of a committee of the states, thereby overcoming the dilemma of a congress in perpetual session, which was one source of its debility, or virtual obliteration of the government of the United States. The plan promptly collapsed under trial. Congress seemed as incapable of exercising the powers it already had as it was of obtaining new powers from the states. Jefferson was no "strict constructionist" where the Articles were concerned. In the case of the land ordinance of 1784 for the government of the western territory, he prevailed upon Congress to adopt a bold nation-building measure without a stitch of constitutional authority.

Jefferson's congressional career ended in May 1784, when he was appointed minister plenipotentiary to join benjamin franklin and John Adams, in Paris, on the commission to negotiate treaties of amity and commerce with European states. He had helped reformulate policy on this subject in Congress. The policy concerned trade, of course; but it also concerned the strength and character of the confederation. Although the front door to congressional commercial regulation was closed, the back door was open through the power of Congress to negotiate treaties. "The moment these treaties are concluded the jurisdiction of Congress over the commerce of the states springs into existence, and that of particular states is suppressed," Jefferson wrote. Only in treating with foreign nations could the United States act as "one Nation," and so acting not only expand trade abroad but strengthen the bonds of union at home. Indeed, Jefferson asserted that the latter was his "primary object." His hopes were quickly disappointed, however. The European courts, with two or three exceptions, rebuffed the American overtures for freer trade; and as the various state legislatures undertook to regulate foreign trade, Jefferson's political objective was undermined. He reluctantly concluded with Madison and other nationalists that there was no alternative to the outright grant of commercial power to Congress. It was the logic of commercial policy, basically, that led Jefferson to support the federal convention.

Jefferson's position in France, where he had succeeded Franklin as minister, conditioned his response to the new constitution in opposite ways. On the one hand, he had seen the infant republic jeered, kicked, and scoffed at from London to Algiers, all respect for its government annihilated from the universal opinion of its feebleness and incompetence. He had been frustrated in commercial diplomacy even at Versailles; and he and Adams had gone begging to Dutch bankers to keep the confederation afloat. A stronger government, more national in character, with higher tone and energy, was therefore necessary to raise the country's reputation in Europe. On the other hand, Jefferson pondered the new constitution in Paris, where tyranny, not anarchy, was the problem, where the drama of the French Revolution had just begun, and where he had come to recognize the inestimable blessings of American liberty. Learning of shay ' srebellion, which terrified Adams in London, Jefferson declared philosophically, "I like a little rebellion now and then. It is like a storm in the atmosphere." In this spirit, reading the convention's plan in November, he thought the delegates had overreacted to the insurrection in Massachusetts and set up "a kite to keep the hen yard in order." He was staggered, too, by the boldness of the work, a wholly new frame of government, when he had looked for reinvigorating amendments to the Articles.

But the more Jefferson studied the Constitution the more he liked it. He had two main objections. The perpetual reeligibility of the chief magistrate aroused monarchical fears in his mind. Most of the evils of European governments were traceable to their kings, he said; and an American president reeligible every fourth year would soon become a king, albeit an elective one. The fears were little felt at home, however, chiefly because of the universal confidence in george washington, whose election to the first office was a foregone conclusion. So, increasingly, Jefferson concentrated on his second objection, the omission of a bill of rights. In this, of course, he was supported by the mass of anti-Federalists. At first he unwittingly played into their game of using the demand for a bill of rights to delay or defeat ratification of the constitution. His suggestion in a private letter that four states withhold their assent until the demand was met contributed to the initial rejection of the Constitution in North Carolina. Actually, Jefferson always wanted speedy adoption by the necessary nine states; and when he learned of the Massachusetts plan of unconditional ratification with recommended amendments, he backed this approach. Meanwhile, in a lengthy correspondence, he converted Madison, the Federalist leader, to the cause of a bill of rights. Acknowledging the inconveniences and imperfections of all such parchment guarantees and conceding the theoretical objection to denying powers that had not been granted, he nevertheless insisted "that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."

Jefferson returned from France in 1789 and became secretary of state in the Washington administration. Great issues of foreign and domestic policy, which struck to the bedrock of principle, soon brought him into conflict with treasury secretary alexander hamilton. The conflict symbolized the rising opposition, first in the government, then in the country at large, between two nascent political parties, Republican and Federalist. The Constitution itself became an issue in February 1791, on Hamilton's plan to incorporate a national bank. After Washington received the bank bill from Congress, where Madison had pointedly questioned its constitutionality, he asked the secretaries f or their opinions. Jefferson returned a brisk 2,200-word brief against the bill. No power to incorporate a bank had been delegated to Congress. None could be found among the enumerated powers, nor could it be fairly inferred from either of the general clauses appealed to by the bank's advocates. The power of Congress to provide for the general welfare was only the power to lay taxes for that purpose; the necessary and proper clause, unless construed strictly, would "swallow up all the delegated powers, and reduce the whole to one power." The bank bill, he concluded, would breach the limits of the Constitution, trample on the laws of the states, and open "a boundless field of power, no longer susceptible to definition." Washington, however, was persuaded by Hamilton's opinion founded on the doctrine of implied powers and signed the bill. The issue of congressional power was reargued a year later on Hamilton's Report on Manufactures. No legislation resulted, but Jefferson told the President that on the principles of the report Congress could tax and spend without limit on the apology of aiding the general welfare. The deeper grounds of division involved matters of morals, interests, and politics; but because policies were debated in constitutional terms, the question of who was loyal to the Constitution—whether it was best served by strict or loose construction, by states ' rights or national consolidation, whether it ought to be viewed as a superintending rule of political action or as a point of departure for vigorous statesmanship—became a major issue between the parties.

The general doctrine of states' rights had been present from the beginning of the controversy, but only in 1798, when Jefferson was vice-president, did it become firmly associated in his mind with the preservation of the Constitution, the Union, and republican liberty. (See union, theories of.), All were threatened, in his opinion, by the alien and sedition acts enacted during the war crisis with France. Under the pretense of saving the country from Jacobins and incendiaries, the Federalists, he believed, aimed by these laws to cripple or destroy the Republican party. Because of the danger of criminal prosecution, the delusion of public opinion, and Federalist control of the government, including the courts, the usual means of opposition were ineffectual; so Jefferson turned to the state legislatures as the point of protest and resistance. There was nothing novel in the proceeding. As early as 1790 the Virginia assembly had protested against the allegedly unconstitutional acts of the federal government; in fact, opposition of this kind had been contemplated, and approved, in the federalist #28. But the resolutions secretly drafted by Jefferson, and adopted by the Kentucky legislature in November, offered an authoritative theory of "state interposition" that was destined to have great influence. (See virginia and kentucky resolutions.) The Kentucky Resolutions set forth the theory of the Constitution as a compact among the states. Acts beyond the delegated powers were unconstitutional and void; and since the contracting parties had created no ultimate arbiter, each state had "an equal right to judge for itself, as well of infractions as of the mode and measure of redress." How far Jefferson meant to go was unclear. He called for nullification of the oppressive laws; but rather than cause overt state defiance of federal authority, his aim was to arouse opposition opinion through the legislatures to force repeal of the laws. When this political strategy failed, he got Kentucky, as well as Virginia, to renew its protest in 1799, again to no avail. Nevertheless, Jefferson always believed that the Virginia and Kentucky Resolutions were crucial to "the revolution of 1800" that elevated him to the presidency. They had saved the party and the freedom of the political process upon which victory at the polls depended. To this extent, certainly, the resolutions strengthened principles of freedom and self-government under the Constitution. But in appealing to states' rights and state resistance—interposition or nullification or secession—Jefferson struck a course potentially as dangerous to the Constitution and the Union as the odious laws were to civil and political liberty.

Jefferson entered the presidency pledged to return the government to the original principles of the Constitution. These principles included, first, the protection of the state governments in all their rights as the primary jurisdictions of domestic affairs; second, a frugal and simple administration of the federal government; and third, a sharp contradiction of executive power and influence, which had threatened to "monarchize" the Constitution. Such principles were likely to prove embarrassing to the President's leadership. The story of the administration became the story of how Jefferson escaped, evaded, or overcame the restraints of his own first principles in order to provide the strong leadership the country required.

Jefferson's first test concerned the judiciary. He had always favored an independent judiciary as the guardian of individual rights against legislative and executive tyranny. But in "the crisis of '98" the courts became the destroyers rather than the guardians of the liberties of the citizen. The power of this partisan judiciary had been increased by the judiciary act of 1801 passed in the waning hours of the Adams administration. The Federalists, Jefferson believed, had retired to the judiciary as a stronghold from which to assail his administration; and he promptly called for repeal of the Judiciary Act. This was done, although it involved the abolition of judgeships held on good behavior tenure. The case of marbury v. madison (1803) arose at the same time. It, too, was significant primarily in its political character, as a duel between the President and the new Chief Justice, john marshall. Jefferson, who disliked his Virginia cousin, objected to the decision not because the Court asserted the ultimate power to interpret the Constitution, for in fact it did not go that far, but because Marshall traveled out of the case, pretending to a jurisdiction he then disclaimed, in order to slap the chief magistrate for violating constitutional rights.

With regard to judicial review, Jefferson consistently held to the theory of "tripartite balance," under which each of the coordinate branches of government had the equal right to decide questions of constitutionality for itself. This equality of decisional power was as necessary to maintaining the constitutional separation of powers, in his view, as the doctrine of states' rights was to preserving the division of authority in the federal system. Under the theory he considered the Sedition Act, which had expired, unconstitutional from the beginning and pardoned those still suffering its penalties. The idea of governmental adaptation and change through construction of the Constitution was repugnant to Jefferson. Even more repugnant was the idea of vesting the ultimate authority of interpretation in a court whose members had no accountability to the people. But Jefferson, though he held the judiciary at bay, was unwilling to push his principles to conclusion and left the foundations of judicial power undisturbed for Marshall to build upon later.

Jefferson overcame the restraints of his whiggish view of executive power by capitalizing on his personal magnetism and influence as a party leader. In foreign affairs, the principal field of the general government, he had generally taken a more expansive view. Yet the foreign affairs triumph of his administration, the louisiana purchase, became a constitutional crisis for him. While other Republicans easily discovered legal warrant for the treaty, he could not. It was "an act beyond the Constitution," and there was nothing for the President and Congress to do but "throw themselves on the country for doing them unauthorized, what we know they would have done for themselves had they been in a situation to do it." So he drafted a constitutional amendment—"an act of indemnity"—to sanction the treaty retroactively. "I had rather ask an enlargement of power from the nation," he wrote to a Virginia senator, "than to assume it by construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." Congress was less scrupulous, however, and when it declined to follow him, he acquiesced. A revolution in the Union perforce became a revolution in the Constitution as well. He found justification for other executive actions—in foreign affairs, in the suppression of the Burr Conspiracy—above and beyond the law. "It is," he wrote, "incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake." In Jefferson's thinking, actions of this kind, which were exceptional and uncodified, were preferable to false and frivolous constructions of the Constitution, which permanently corrupted it. Yet he took little comfort from the theory of "higher obligation" in the case of the Louisiana Purchase.

In retirement at Monticello from 1809 until his death seventeen years later, Jefferson repeatedly confronted the problem of constitutional preservation and change. He knew there could be no preservation without change, no constructive change without preservation. He knew, as he wrote in again championing reform of the Virginia constitution, "that laws and institutions must go hand in hand with the progress of the human mind." And he did not hesitate to declare again his belief, formed in 1789 in the shadow of the Bastille, that each generation, representing a new constituent majority, should make its own constitution. Change should occur, fundamentally, by constitutional convention. Next to that, it should occur by regular amendment. As President he had advocated the twelfth amendment, approved in 1804, and several others that were stillborn. Now, from Monticello, he advocated amendments authorizing federal internal improvements, the direct election of the president, and the two-term limitation on the president. Nothing happened. Finally, not long before his death, he "despair[ed] of ever seeing another amendment to the Constitution," and observed, "Another general convention can alone relieve us." Thus in the nation, as in the state, he appealed to both lawmaking and constitution-making authorities to keep the fundamental law responsive to new conditions and new demands.

Jefferson continued to the end to reject constitutional change by construction or interpretation. In the wake of the Panic of 1819, which threw his affairs into hopeless disorder, he reacted sharply against the course of consolidation in the general government, above all the bold nationalism of the Supreme Court. "The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric," he wrote in 1820. "They are construing our constitution from a coordination of a general and special government to a general and supreme one. This will lay all things at their feet." Only by combining the revolutionary theory of "constituent sovereignty" with the rule of "strict construction" would it be possible, Jefferson believed, to maintain constitutional government on the republican foundations of "the consent of the governed."

Merrill D. Peterson
(1986)

Bibliography

Boyd, Julian P., ed. 1950–1974 The Papers of Thomas Jefferson. 19 Vols. Princeton, N.J.: Princeton University Press.

Levy, Leonard W. 1963 Jefferson and Civil Liberties: The Darker Side. Cambridge, Mass.: Harvard University Press.

Lipscomb, A.A. and Bergh, A.E., eds. 1904 The Writings of Thomas Jefferson. 20 Vols. Washington, D.C.: Thomas Jefferson Memorial Association.

Malone, Dumas 1948–1982 Jefferson and His Times. 6 Vols. to date. Boston: Little, Brown.

Peterson, Merrill D. 1970 Thomas Jefferson and the New Nation: A Biography. New York: Oxford University Press.