thomas jefferson wished to be remembered as the author of the declaration of independence and as the founder of the University of Virginia, but history has credited him with much more. In the world of practical politics, Jefferson's achievements were legion—legal reformer, wartime governor of Virginia, author of the virginia statute of religious liberty, draftsman of the great Ordinance of 1784, first secretary of state, leader of the "loyal opposition" in the administration of john adams, third President of the United States, purchaser of Louisiana, father of the Democratic party, and founder of the first political party system. In the world of ideas, Jefferson was the nation's premier advocate of political democracy, popular sovereignty, and a republican system of government. He was also a staunch advocate of public education, progressivism, and the rule of law both at home and abroad.
Somewhat less appreciated than these enduring contributions to the nation's history was Jefferson's role in the development of a theory of constitutionalism that, after two centuries, continues to inform the American commitment to constitutional government. Jefferson's first inaugural address (March 4, 1801), one of the nation's great state papers, provides a glimpse into part, though not all, of Jefferson's constitutional vision. Directing his remarks to the Washington community in the newly established seat of government in the district of columbia, Jefferson reflected upon those axioms of the American system that he prized above all. Referring to majoritarian rule as a "sacred principle," Jefferson reminded his listeners "that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression." In one of the most remarkable statements on the value of freedom of speech in a free society, Jefferson declared, "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." And with a single phrase, Jefferson identified the constitutional value whose full implementation has been the cornerstone of modern American constitutional jurisprudence :"Equal and exact justice to all … of whatever state or persuasion, religious or political."
The elements of Jeffersonian constitutionalism were these: the preservation of fundamental rights; the preeminence of the legislative branch in a government of separated powers; the integrity of the sovereign states in a federal union of shared and divided powers; strict adherence by Congress to those powers delegated to it in the written Constitution; religious liberty as guaranteed by a regime in which church and state remained apart; and a recognition of the need for frequent constitutional change through the process of constitutional amendment. The fact that Jefferson himself, out of political necessity, may have trespassed upon some of these principles when he became President does not undercut their value, importance, and durability to the development of American constitutionalism.
Jeffersonian constitutionalism emerged in sharp relief to the constitutionalism of the Federalists in the political crisis brought on by the passage of the alien and sedition acts in 1798. These Federalist enactments had two chief purposes—to undermine the support the Jeffersonian opposition was receiving from French refugees, recent immigrants, and resident aliens (the Alien Act) and to stifle the Jeffersonian press (the Sedition Act). Although never tested definitively in the Supreme Court, the Sedition Act was recognized and implemented by the lower federal courts. The Jeffersonian response took cogent form as resolutions of principle adopted by the legislatures of Kentucky and Virginia. Jefferson, who was then vice-president of the United States in the administration of the Federalist John Adams, secretly prepared the Kentucky Resolutions, while james madison, Jefferson's closest political ally, wrote the Virginia Resolutions.
The virginia and kentucky resolutions vigorously defended the cause of civil liberties against encroachment by the federal government. At a time when the Supreme Court had yet to assert its power of judicial review over Congress and when first amendment and Fifth Amendment guarantees were nothing more than "parchment barriers" against governmental tyranny, the resolutions represented the only formal defense then available against the exercise of excessive federal power. The resolutions are replete with Jeffersonian principles of constitutionalism—defense of civil liberties, support for the integrity of the states, limited government, due process of law, faithfulness to the language of the written constitutional text, fear of federal "consolidation," and the importance of having an authority located somewhere (in this case, the states) with jurisdiction to declare federal laws unconstitutional.
Although the Virginia and Kentucky resolutions were primarily designed as a "solemn protest" against the abuse of power, the resolutions also advanced a theory of federal union. Both Jefferson and Madison characterized the union as a "compact" among the several states. Under this theory of federalism, each state reserved to itself, as a contracting party to the compact, the "equal right to judge for itself, as well of infractions [by the general government] as of the mode and measure of redress." In subsequent resolutions, the Virginia and Kentucky legislatures even proposed the doctrine of state nullification as a proper remedy against unlawful federal usurpations. However, the states north of Virginia repudiated this notion as well as the compact theory itself and called upon the federal judiciary rather than the states to decide upon matters of constitutionality. As the Rhode Island legislature would put it, Article III of the Constitition "vests in the Federal Courts, exclusively, and in the Supreme Court, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States." Thus, the Virginia and Kentucky Resolutions, in an indirect way, helped to pave the way for marbury v. madison (1803), the Supreme Court's first clear assertion of its power of judicial review.
The compact theory proposed by the Jeffersonians in the Virginia and Kentucky Resolutions did not die with the demise of the Alien and Sedition Acts. Rather, it was resurrected and then distorted by the state of South Carolina in an ordinance nullifying the tariff of 1832. Even James Madison repudiated South Carolina's version of the compact theory. So did the then President andrew jackson. Subsequently, the theory became closely identified with the cause of the slaveholding states, who used it to defend secession in the winter of 1860–1861. The Union victory in the civil war thoroughly discredited the theory once and for all, and the Supreme Court finally repudiated it as a doctrine of constitutional law in the case of texas v. white (1869). Nevertheless, compact theory continued to show signs of life in the twentieth century in the fight for states ' rights against centralization in Washington during the new deal, in the conservative response to the civil rights movement in the 1950s and 1960s, and even more recently when states with unique problems, such as Alaska, have protested against perceived unfairness in treatment by the national government.
Jeffersonian constitutionalism had many notable adherents. The well-known Virginia senator John Taylor of Caroline County attacked Federalist constitutional theories and defended local democracy and states' rights in numerous books and pamphlets. St. George Tucker, the Virginia jurist, annotated the most influential edition of Blackstone's Commentaries (five volumes, 1803). But Jeffersonian constitutionalism achieved its most forceful and articulate expression in the jurisprudence of Judge spencer roane of the Virginia Supreme Court of Appeals. From the time of his election to that court in 1794 until his death in 1822, Roane became one of the staunchest advocates of Jeffersonianism, speaking from one of the nation's most important state courts. He became Chief Justice John Marshall's chief antagonist in the debate over federal power, a debate that surfaced in a series of great constitutional cases. In numerous pamphlets and newspaper articles, as well as in his judicial opinions, Roane applied Jeffersonian constitutional principles with unparalleled consistency. He believed in the coequal power of the states, he challenged the judicial supremacy of the Supreme Court in deciding matters of federal constitutionality, and he believed that the preservation of the Union depended upon a narrow construction of the powers delegated to Congress.
But the Jeffersonians were not single-minded in their views on the federal Constitution. Justice william johnson, a Jefferson appointee to the Supreme Court who sat from 1804 to 1834, shared the Jeffersonian belief in the primacy of the legislative branch in any government of separated powers and the Jeffersonian fear of the federal judiciary. Thus, in the case of United States v. Hudson and Goodwin (1812), Johnson wrote that the federal courts did not have jurisdiction to try common law crimes without expressed legislative authorization from Congress. But where powers were given to the legislature, as in Article I, section 8, of the Constitution, Johnson believed that they should be amply interpreted. Although he was noted for his many dissents to the strongly nationalist jurisprudence of the Marshall Court, Johnson went along with Marshall's great decision in mcculloch v. maryland (1819), which broadly defined congressional power under the necessary and proper clause. And in a concurring opinion in the famous commerce clause case of gibbons v. ogden (1824), Johnson declared that "the [commerce] power must be exclusive; it can reside but in one potentate; and hence, the grant of this power carries with it the whole subject, leaving nothing for the State to act upon." Johnson thus invited the wrath of Jeffersonian purists, who rejected the doctrines of implied powers and exclusive federal control over commerce. They believed that Johnson had become something of a crypto-Federalist.
john c. calhoun, secretary of war in the administration of james monroe, vice-president under both john quincy adams and Andrew Jackson, United States senator from South Carolina from 1832 to 1844, and secretary of state under John Tyler, was one of Jefferson's principal political heirs. While history has rightly tagged Calhoun as the architect of southern nationalism and as a principal defender of southern slavery, Calhoun also composed one of America's most original political treatises, the Disquisition on Government (1853), which advanced novel theories of the Constitution. Although Calhoun's specific interest was the antebellum South's sectional concern for its "peculiar institution" (slavery), his articulation of the special problems of minorities in a majoritarian culture and his efforts to devise mechanisms to protect minority interests—such as the notion of the "concurrent majority"—contributed much to the totality of the American political experience. This, too, was part of the tradition of Jeffersonian constitutionalism.
Despite the checkered history of the compact theory, Jeffersonian views on the importance of the states in the structure of the Union have become the basis of modern neofederalism. Neofederalism rests upon an efficiency-utility theory that posits that the central government cannot take repsonsibility for all domestic issues and that, as Justice louis d. brandeis said in dissent in the case of new state ice company v. liebman (1932), states can serve as "laboratories" for social experimentation, particularly in times of economic distress. Because the states have often been ahead of the federal government in devising innovative solutions to novel social problems, state power and authority need to be promoted. A second rationale for modern neofederalism is that some states have unique problems that only they can properly address. A national solution may be inappropriate. Therefore, the integrity of state power deserves respect because state governments are, as Jefferson himself said in his first inaugural, "the most competent administrations of domestic concerns."
Jeffersonian constitutionalism has had its most dramatic manifestation in the twentieth century in the Supreme Court's development of civil liberties as the cornerstone of constitutional law. In their protest against the Alien and Sedition Acts, the Jeffersonians anticipated this development when they articulated a very liberal theory of speech and press freedom. And it was Jefferson who spoke of "a wall of separation between church and state," a concept that the modern Supreme Court has repeatedly affirmed. American religious pluralism, nurtured by the Supreme Court's sensitivity to the requirements of the establishment clause of the First Amendment, owes much to the works and thought of Jefferson and Madison, the foremost champions of religious freedom in the early Republic.
The revival of state constitutional law as an alternative forum and mechanism for constitutional adjudication is another legacy of the Jeffersonian tradition. As the Supreme Court continues to consolidate and, in some instances, to cut back on its past advances in the field of individual rights, state supreme courts, under their own separate state constitutions, have broadened the scope of constitutional law and have broken new ground in rights jurisprudence. This is a development that the original Jeffersonians would have understood and approved.
Horsnell, Margaret E. 1986 Spencer Roane: Judicial Advocate of Jeffersonian Principles. New York: Garland.
Morgan, Donald G. 1954 Justice William Johnson, The First Dissenter: The Career and Constitutional Philosophy of a Jeffersonian Judge. Columbia: University of South Carolina Press.
Patterson, Caleb P. 1953 The Constitutional Principles of Thomas Jefferson. New York: Books for Libraries.
Peterson, Merrill D. 1962 The Jeffersonian Image in the American Mind. New York: Oxford University Press.