FREEDOM AND THE CONSTITUTION
FREEDOM AND THE CONSTITUTION:
The Sacred Core of Original Intent
IN SEARCH OF NATURAL LAW AND THE UNVANQUISHABLE RADIANCE
THOMAS JEFFERSON: HIS INFLUENCE UPON THE ESTABLISHMENT OF THE FUNDAMENTALPRINCIPLES OF AMERICAN CONSTITUTIONAL LAW
FREEDOM AND THE CONSTITUTION
The Sacred Core of Original Intent
The focus of this essay is the destruction of the federal system as
originally envisioned and created, and a speculation as to how that relates to
the original intent controversy and the political and legal future course of
the United States. That the federal structure was slightly altered by practice
early in our constitutional history, and then largely transformed by the Civil
War and the 14th Amendment as well as by subsequent amendments and evolving
constitutional interpretation, is not a novel concept and perhaps not deserving
of any extended investigation. Simple truths may be overlooked, however, while
those that perceive them grant widely varying degrees of ultimate importance.
I will not grossly inflate the significance of the essential destruction of state power, as this was to a large degree necessitated by the Constitution itself, while the extinction was foreseen by multiple prognosticators at the time of ratification and was indeed inevitable from the beginning. Again, oft-times the obvious is misplaced when seeming complexity baffles the logical capacities and scholars seek hidden meanings and explanations. Thus I feel compelled to lay out a brief exposition on the topic and to scan the horizon and speculate upon the potential consequences of the modern federalism. Beyond that discussion, however, I will explore the lesson harvested from admittedly meager researches, that being the core meaning of original intent and its applicability to modern American Government and Law. Yet before I enter into either of these two broad avenues, I must visit the Virginia Ratification Convention of 1788. In truth, however, my observations on federalism must find some basis in these debates, and thus we might somewhat imperceptibly coalesce from the one topic into the others.
I. The Great Convention
For an historian or legal scholar it is no great accomplishment to have consumed the text of the Virginia Ratification Debates, yet I contentedly assume what I must consider to be a privileged post in having re-lived these sacred proceedings in light of the infinitesimal percentage of my fellow countrymen to have done so. I perhaps further flatter myself to suppose that what thoughts are inspired by this reading, and which I shall labor to convey, might be of some interest to those rare souls who are nourished by reflections on American History and Constitutional Government and Law.
Virginia was the greatest of the American States and indeed one of the great Nations of the world. A mere brief examination of its preeminent statement and their achievements reads as an historical honor role, matched in brilliance and capacity by a few known epochs in the world’s history. George Washington, Thomas Jefferson, James Madison, John Marshall, Patrick Henry, George Wythe, George Mason, James Monroe --- all were active in the Revolution and the national construction.
The Convention scene itself is dramatic in its recreated vision. The heat of early summer, both liberating in its warm breezes and oppressive in its stifling humidity, set the tone for partisan and impassioned debate, featuring perhaps the greatest orator in American history on the one side and the greatest practical constitutional theorist and constructor on the other; the author of the first bill of rights in America on the one side, the recognized founder of the National Judiciary on the other. Two future American Presidents faced against each other in heated contention.
At issue was the fate of the Nation, an elevated concern even when cynically viewed. Both sides were driven by the conviction that the liberty of America was staked upon that side prevailing in the contest. The opposition was free to attack, to strike at every vulnerability of the system, and to conjecture every conceivable and even inconceivable worst-case scenario. The proponents of ratification were forced to defend against these assaults, seeking shelter in the structure of the Constitution and the moral virtue of American citizens.
The opponents were not contented to rest their protection upon the character of the people, either the representatives or the citizenry. While the recourse of modern courts to the Bill of Rights when shielding individuals from the unprincipled application of governmental power proves the validity of the assertions that neither the people nor the government were to be trusted without institutional safeguards, yet at the same time our freedom has finally rested upon the unique character and republican commitment of our people. Granted that such is but a slender reed, yet it has endured and perhaps even grown stronger. Thus Madison rose in the closing sessions of the Convention and challenged the Constitution’s detractors: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure.”1
The opponents were well aware, and the proponents dared not concede, that a strong national power would strip the states of their cherished sovereignty. Patrick Henry rose time and again to exhort his fellow Virginians not to abandon their glorious independence and national sovereignty. “Where are the purse and sword in Virginia? They must go to the Congress. What is become of your Country? The Virginian government is but a name.”2 And while a tight and strict construction might preserve to the states --- and to individual citizens --- a reasonable degree of their prior autonomy, opponents correctly dreaded the inevitable application of implied powers. George Mason stood to signal that free speech would be lost, the government will oppress the nation, and “implication might swallow all our rights.”3
The ultimate issue which carried the Constitution to acceptance was the commitment to national union and the awful consequences of disunion. As the great John Marshall addressed the Virginians, “United we are strong, divided we fall.”4 Yet it was the great human god Washington, ensconced at Mount Vernon and refusing to plead for the Constitution, who proved the compelling force determining ratification. Proponents of reform well-realized before the Constitutional Convention that the participation of Washington would be absolutely essential. The weight of his Convention leadership, the balanced brilliance of the document itself as modelled after his own fame for moderation and virtue, and his transcending signature on the paper as President of the Convention, tempered the Nation even before the system was debated.
The desperate opposition, the tenseness and narrowness of the votes in the critical states, despite Washington’s stature, well-highlights the chances of the Constitution for passage without the weight of the American colossus. He was referred to occasionally in the Virginia debates in terms of reverence befitting his mystical stature. Overall, however, the proponents rode him silently to victory; opponents dared not malign the man nor attack his motivations.
The missing Jefferson was likewise referred to, though with more specificity and with less overriding impact. Both sides sought to employ his opinions, attempting to harness the fame of Jefferson to bolster their arguments. Ultimately few understood his true position except that he demanded union and sought amendment.
An historical analysis of the Virginian Convention itself, retracing and accenting the scenes, would be a worthy project. The dramatic impact can be envisioned as one imagines the assembly rapidly powering toward a climax, many of the greatest of America’s leaders having intensely delivered their positions repeatedly, and the great Patrick Henry, sweat pouring from his hulking frame in the oppressive southern heat and humidity, passionately declaiming upon the perils and dangers his unseeing brethren were poised to embrace. As his fevered voice bridged at a trembling climax the heavens themselves opened as roaring thunder and pounding winds and rain so terrified the collected leadership that all rose in tumult and confusion, scattering for illusory shelter from immortal Nature.
But the climax was short-lived and the event descended into a calculated certainty. The revolutionary conservative Nicholas moved for a vote, sure of the slender victory. The equivocating but sincere Governor Randolph, future United States Attorney General, justified himself one last time for the benefit of posterity. The opposition moved for passage with previous amendments, which was defeated by 8 votes out of 168. The main question was put and passed by a mere 10 votes. The Union, with the addition of the Great Republic of Virginia, was consummated.
II. Rambling through Federalism
Federalism as created by the Constitution and as envisioned by the majority of the framers and ratifiers was intended to be finely balanced. This balance was to be a product of coexisting sovereignties, consisting of the National Government and the state governments. Granted, the federal Government was avowedly to be supreme, yet only within the spheres of authority granted to it explicitly by the Constitution. It was the broad understanding that the states retained all sovereignty not explicitly granted, even before the adoption of the Bill of Rights, which institutionalized the concept. Proponents of the Constitution relied heavily upon the theme of limited powers and retained state sovereignty, while opponents lauded the theory but distrusted its implementation without an express declaration to that effect.
It was an issue of great concern to constitutional theorists such as Madison and Jefferson that the federal structure itself should be finely balanced, that the branches should be effectively separated and provide an internal checking mechanism upon one another. But is may be authoritatively asserted, especially in light of the later Virginia and Kentucky Resolutions as well as the preamble to the Virginia Ratification itself, that the ultimate institutional check upon an abuse of federal power was to be the states. In an age of revolution it was not to be supposed that a refusal to submit to tyranny should be a problematic or extraordinary contemplation. It was accepted by many as an article of faith that the states would resist arbitrary federal usurpations.
Thus it was hoped that the wise structure of the federal system would lighten the possibility of federal tyranny, yet reliance was not placed on that tenuous lifeline but was placed in the resistant powers of the states, bastions as they were of human liberty on a planet wallowing in tyranny and oppression. It might be rationally supposed that the spirited resistance of one or more states, acting upon the genuine will of the people, would give the Federal Government pause before implementing illegal schemes that a corrupted national legislature and/or executive enacted or sought to enforce. That the Nation would at some point become rigidly divided, both sides upon their own conceptions of justice and wisdom, was not generally credited at that time, although a surprising degree of southern regional chauvinism is apparent in sections of the Virginia debates. A number of orators declaimed upon sectional rivalry, the divergence of interests which motivated North and South, and the specter of regional warfare. This is not the image normally associated with the united nation-states which had just waged a successful war and were ostensibly tied by bonds of brotherhood and common ancestry.
It must be noted that the issue of state power legitimacy was never crystallized because both sides maintained a commitment to it. While the opponents fought for state power, the proponents never disavowed state sovereignty but rationalized that the states would retain significant independence. The proponents of the Constitution used every opportunity to mollify the objections of federal usurpation of state authority. Beyond insisting upon the immutable existence of strict construction of delegated powers, advocates glorified the democratic nature of the national representation, which was true enough, and by turns listed the array of powers remaining to the states, including training the militia, almost total control over property and criminal law, state legislative control over the Senate and the Executive, and the limited scope of the Federal Judicial Power.
For instance, Madison explicitly asserted that a state could not be dragged before a federal court by a citizen of another state, despite the plain words of the Constitution.1 Yet this happened shortly after ratification and was upheld with but one dissent by the United States Supreme Court.2 The 11th Amendment was quickly ratified by the outraged states. Further, Madison as well as other proponents explicitly guaranteed that the Federal Government had no power over criminal law, except for treason, piracy, and international law.3 Today, of course, every substantial aspect of the criminal law is supervised and regulated by the national government, although this has largely occurred after the 14th Amendment revolution. Madison also stressed the critical nature of the election by the state legislatures of the United States Senate; this was a powerful argument against the objections to a wholly consolidated government.4
James Monroe and Patrick Henry looked to the future and foresaw the total destruction of the state governments.5 The arguments countering that fear by the proponents, ranging from the denial of implied powers to the moral commitment of the federal representatives to democracy to the principled application of the judicial power, proved to be fallacious.
The critical factor which originally motivated the movement toward the Constitutional Convention and which justified ratification was the overriding commitment to union by a large segment of the nation’s leading men, as well as the terror of a future of chaos and destruction if union were forsworn. It is interesting and important to note that the strong desire for union dominated the passions of both proponents and opponents to the Constitution. While some opponents desired a true confederation without even the shadow of consolidation, most opponents were motivated by concerns of degree, that too much power was granted to the National Government and thus the balance which should ideally subsist between the two sovereignties, and upon which the rights and happiness of the people depended, was overthrown.
A vital link that bound almost all of the Nation’s leaders was the desire to preserve the freedom that Americans had wrested from both Great Britain and from the wilderness. The sides were divided on how best to secure that liberty. The proponents of the Constitution were in favor of a limited but strong federal government and reasonably strong states; opponents largely desired a very limited federal government of moderate strength and at least equally strong states. Of course the fringe element on both sides desired, alternately, a powerful national government with almost irrelevant or even non-existent states, and an almost non-existent national government with wholly sovereign states. It is noteworthy that the arguments against ratification by the delegates who believed in republican government and national union were based upon a belief that the present system was functionally adequate, that is, domestic peace and tranquility were then flourishing, and/or a strong national government should, regardless of inevitable conflicts and problems, receive far less broad grants of power.
Also worthy of note is the dominant inclination toward strong consolidation and against conflicting diversity. Educated Americans in the 18th Century were avid readers of history and were conditioned toward embracing the eternal human concepts of conflict and national aggrandizement. The great conservative political leaders, such as Washington, Alexander Hamilton, and John Adams, looked upon the world as an arena of competing empires and likewise looked upon America as an emerging empire of unlimited potential. The writings of these three leaders, in official and personal correspondence, is replete with references to the “American Empire” and its future capacities upon the world stage.
Most fascinating, however, is that these empire builders foresaw a strange, as well as a brave, new world: empire based upon principles of freedom and justice. The relative nature of those concepts is highlighted merely by realizing that the creation of this great empire was achieved by exterminating the entire indigenous Race as well as by waging aggressive war and threatening other nations with a growing power to achieve diplomatic advantages leading to the acquisition of territory by treaty. [cf. Jefferson and the Louisiana Purchase]. Yet by pondering the defects of human wisdom and virtue we should not be led away from other essential truths, such as the unique nature of this new Empire and the moral virtues it has transmitted through deed and example to the rest of the world.
Empires come and go, the fact is inescapable. The strong empires exercise political dominance over the rest of mankind. The question is not whether a dominant empire must be strong, for that is the sine qua non of its dominance, but what values it will possess and enforce upon others. Shall it be an enslaving, torturing, and brutal empire which sustains itself through blood and fear, or shall it be an empire committed to freedom, human rights, and obedience rooted in Law? Washington and Jefferson envisioned the latter, and this spiritual direction has been carried along, though somewhat inconsistently, over the last two centuries, most recently embodied in the American leadership by John Kennedy.
Such fundamental questions consume the smaller societal issues as the midday sun outshines the galaxies here on Earth. Fear to exercise power, to assert an existent or potential dominance, is to yield exercise to other forces. If one conjectures that our society is, at core, the one most committed to freedom, Law and human rights, we then must necessarily give way to powers either less committed or wholly at war with those values when we abstain from asserting our strength as both a political and moral force. Thus our destruction as well as the destruction of freedom would be ensured.
What is perhaps an observable phenomenon is the mutual convergence of expanding federal power with the vaster extent, density, and ultimately oppressiveness of the social force. These two powers combined could prove unanswerable. The two remain, however, separate entities. The federal power seems to continually expand, it’s true, yet federal doctrine continues to contain a multitude of principles at odds with societal omnipotence.
In particular, the Judiciary possesses an entrenched conservatism relating to individual rights. While often sanctioning the plenary power of the State to exercise control over the individual and society, to order our lives according to some nebulous rational basis, the Federal Judiciary also tends to draw a firm line when the State encroaches on certain sensitive areas relating to freedom of expression and of conscience, basic procedural fairness, and transgressions by the police. Thus, there exists a critical clash as well as a coalescence between the accreting social trends and the National Judiciary.
In a fundamental sense the Constitution merely ratified an existing political/legal structure as it concerned the Judiciary. The Constitution explicitly states that the “Judicial Power shall be vested,” etc. Just what is, or was, the judicial power? Bred in the traditions of Coke and the Common Law, American lawyers and legal scholars possessed a solid conceptual framework of the judicial role and how it coexists within the overall political system. No general proposition could adequately state the delineation of power. It was and remains an organic process nourished on broad principles which were neither static nor consistent but which ultimately tended toward 1.) the survival and strengthening of strong national government and 2.) continual refinements and advances in republicanism and individual liberty.
No sooner had the Constitution been adopted and the National Government come into existence than a life and death struggle ensued between the competing centers of political authority: the National Government and the individual states. The destruction of true federalism after the 14th Amendment wholly removed the institutional balance protecting civil liberty. As the National Government assumed the entire sphere of virile political power, any balance depended upon an internal Federal equilibrium, with political delineations laid down, lived within, and enforced by the very same Federal system.
The survival of that balance naturally devolved to the Judicial Power. An almost instinctive consensus had allowed the judiciary to assume the referee’s mantle. True, the arbitrational role of the judiciary was elaborated both in the Federalist and in the ratification debates; however, similar claims were insisted upon for the authority of the executive, the legislature, and the states.
Marshall first asserted judicial primacy before the State/National struggle had reached epic proportions and long before the Federal system balance was the predominant concern. The National Judicial supremacy over the states was the issue that far eclipsed concern over the Federal equilibrium. The Marshall Court made a courageous stand, which was based upon both absolutely necessary structural inferences and the “unquestioned history of the day.” Even so, the Union barely survived the struggle. The Civil War and the 14th Amendment ultimately resolved this conflict, though it has reemerged in adulterated form on curious occasions.
There exists a critical distinction between the current debate concerning the relative limits of Federal Judicial power and that of the Legislature, and the early contests which defined the meaning of federalism. The original contest was a fundamental struggle over sovereignty itself, over which system with its own inherent political strength and moral value system would prevail when each was matched to the zenith against the other. Today it is an absurdity to breathe a challenge involving ultimate or prevailing sovereignty. Modern America must be seen as largely a single consolidated source of power emergent from within a system originally adopted with a far different view.
It might be worth commenting upon the emerging socialist state and the mandated norms of equality and proper relations between the races, the sexes, and the classes. The Constitution as ratified envisioned a nation with a strong central government to provide of the common welfare and defense, yet consisting only of certain delegated powers and leaving the residuum to the states and to the people. What was in essence sold to the ratifiers was a vision of largely independent autonomous states, bound to the national government through the coercive powers of taxation, economic regulation, and defense, yet free to exercise sovereignty within their borders relating to the most intimate and fundamental aspects of individual existence. The system of federalism was to allow for a multiplicity of divergent and varying societies, based upon the democratic concept of local control.
The inherent logical inconsistencies demanded the emergence of one dominant power. The web of interrelationship was too vast and too interconnected to allow for sharp delineation of authority, which alone could further the maintenance of multiple competing sovereign powers. The web allowed for no such clear determination; ultimately one power had to emerge dominant.
That the Federal Power is dominant no one dares dispute. Still, no rational person asserts that we possess a government wholly without limits. Yet few frame questions on the propriety of federal policy in terms of actual authority but rather of mere desirability. This power is based upon both practical and legal principles. First, no legitimate national consensus may be denied via amendment. Second, federal power is now so vast that most actions may be justified under either the Commerce Power or as necessary to the implementation of the 14th Amendment. Should Congress seek to alleviate palpable inequality, can its constitutional authority be successfully questioned?
Thus, what visions of Equality and Justice should our National Legislature be seeking to implement, and to what degree should these subjective visions be mandated upon unwilling states and individuals, even if these hold a minority view? While the Congress holds the dubious power to mandate majority values upon minorities, within current constitutional parameters, the Judiciary exists within the perilous and indeed authoritarian position of mandating perhaps minority values upon majorities. And of course the destruction of potent state power when matched against the National Government makes this judicial function absolutely essential for the survival of liberty, as the state authority which was relied upon by original intent to shield the citizen from National governmental abuse has largely ceased to exist.
The Nation, and indeed all of humanity, may be seen to be at a critical crossroad. America has long stood for the principle that Americans owned an individual existence apart from the social reality, an existence that has intrinsic meaning and indeed primacy beyond the exigencies and convenience of government and aggregate society. Most of history exhibits the reality of the state and the society exercising nearly total control over the individual. Motivated by alleged necessity and even mere convenience, and urged by the ascending clamors for “equality” and “justice,” the Government is assuming an ever-larger share in the ordering of our lives.
What is most troublesome is not the steps already taken in that direction, but the growing technological and scientific capacities of the Government to enforce such dictates. Thus the individual will have no escape from the long arm of the omnipotent nation if and when it becomes so zealous in its sacred mission to mandate norms of behavior and thought that its operations will have become fundamentally oppressive.
Chief Justice Rehnquist asserted, in a case involving technological spying and surveillance by the State in order to convict and imprison an American citizen, that when police and state invasions of the individual’s private sphere become so extreme as to merit judicial disapproval, it will be time enough for the Federal Judiciary to deal with the problem. The issue of personal liberty goes to the very essence of our existence, and one can only hope that the People, even more than the Judiciary, maintain an active vigilance for freedom even while pursuing their sacred visions of equality and justice.
III. Freedom And The Constitution
If the originally envisioned system of federalism was so substantially altered as to negate any broad-based application of specific intentions of the framers and ratifiers, what, then, remains of original intent? Is there any core concept which embraces the genius of the system both as created and as altered through historical processes, including war, political and legal power struggles, and constitutionally legitimate amendment?
The American Revolution, conceived in a broad sense as comprehending more than the mere political/military contest, represented two powerful fundamental revolutionary innovations, one relating mainly to the actual political system of government, the other relating to the individual, although both are necessarily entwined. The personal revolutionary innovation is best symbolized and expressed by the Declaration of Independence. Without quoting that immortal document, we may still assert that the Declaration sought to establish the illimitable freedom of the human mind and spirit, a freedom based upon Natural Law Rights granted directly from God and unassailable by man. Such Natural rights provided the framework for each individual to seek a singular destiny, restricted only by talent, desire, and the vagaries of fortune.
The political revolution is symbolized and embodied by the Constitution. It is perhaps more critical because it descended from the partly idealistic and aspirational personal vision to a pragmatic functional political Republic wherein the People claimed and possessed ultimate sovereignty. The very concept of popular sovereignty is sufficiently radical, as it goes beyond past instances of temporary “democracies” (eg. Athens) and fluctuating “republics” (eg. Rome). Previously the state, however conceived, was the ultimate sovereign and the people served the state. Here the state existed to serve the people, and though individuals might be enlisted in the state’s service, they owed allegiance only so long as the government reflected the will of the People.
Generally this concept was a child of the Age of Enlightenment, and its philosophic base might be credited to European intellectuals rather than American statesmen. Nevertheless it remained to America to practically institute the ideal, to nurture the seed into brilliant blossom. How the Constitution became Law is an impressive and unique study of the workings of a Free Humanity. A large proportion of Americans, both wealthy and modest, both intellectual and practical, perceived not only the weaknesses of the Confederation system and the social and political problems it was engendering, but further glimpsed into futurity and faced the virtual certainty of escalating conflict, disunion, and decades or even centuries of warfare and instability. The leading lights among these citizens initiated the process toward change. The People themselves, as embodied by the prevailing political constituency of the nation --- free landholders --- voted for those they perceived as their leaders to represent them in Convention.
The Convention created an entirely new political system, except insofar as the states remained intact and the form was essentially republican. Thus was consummated a further watershed in the Revolution --- indeed a revolution in and of itself --- which was unprecedented in known history. As Jefferson commented, it was the first time a “nation assembled the wise men of the state instead of assembling armies,” in order to change the government.
Yet had the government begun operation at that point, then despite the unquestionable republican nature of the procedure and the system created, a magical and, again, revolutionary step would have been forsaken. For the People once more plainly exercised sovereignty. They again elected representatives to convention, in each state and in greater numbers, and after having personally contemplated the relative merits of the system and sounded out the positions of their potential representatives. These separate conventions debated the nature of the system anew, wholly free to accept or reject it.
Thus the reality of popular sovereignty, institutionalized within the Constitution, and in some ways expanded subsequently (eg. popular election of the President and Senate), was precidentially established within the very process of the Constitution’s adoption.
Popular sovereignty may be easily forgotten and neglected. Centuries of history have made it all too habitually simple to lapse into a conception of the subordinate citizen serving the master state, and I shall not deny --- indeed I might be persuaded to assert --- that such might be the true political situation in the Nation today: as the states have been swallowed, though in form not entirely, thus have the people as well been consumed by the ever-expanding Federal power. Yet certainly the consumption is not complete, and each novice in historical survey understands that seemingly irrevocable trends appear suddenly to have reversed, and the very same individuals who had been decrying the one “inevitable” social or political course are later expounding upon the dangers and evils of an unexpected opposite trend. Thus we must not dwell upon absolutes but merely recognize that even such grand concepts as popular sovereignty --- We The People --- must be viewed with some impartial abstraction.
There exists the further consideration that many individuals and groups were effectively disenfranchised --- likely more than three-fourths of the adult population --- and thus We The People might be more insidiously viewed by some than others. Nevertheless, the popular sovereignty was exercised by the vital political force of that day, at a time when many unenfranchised were perhaps freer and better served by the government than are the enfranchised today. While the broad array of social groups are represented now, it might be seen that specific individual groups are more excluded in the councils of government than our constitutional aspirations demand. Further and more consequentially, the body politic itself, as a single potent force, is perhaps less well represented today than at the time of the Constitution’s founding. It should not be assumed that merely because more groups in society are enfranchised quantitatively that a more balanced representation exists, not to mention more wise or more virtuous.
Perhaps a creeping cynicism may be perceived, both in society generally and specifically within this essay. The latter is not my ultimate intention. The popular sovereignty was originally established on the basis of the moral virtue and physical, intellectual, and spiritual capacities of our citizens. Popular sovereignty is likewise staked on the identical foundation today, and it is not at all certain that we as present and others as future Americans might not equal or indeed exceed our glorious ancestors in moral virtue and the various human capabilities.
While the cynic might see Americans --- Humanity in general --- as digging their own grave, a deeper perception might yield a vision of mankind moving mountains to uncover hidden recesses of heaven and earth. More than likely we are pursuing both courses simultaneously. Still, our potential remains unlimited, which is precisely the vision which motivated Jefferson in writing the Declaration of Independence. And the Constitution, largely the spiritual creation of Washington, which formed a government that had to prove itself acceptable to a Nation nourished in revolutionary liberty, was forced to embody principles of freedom for both individual and institutional expansion.
We may at this point tie in both the individual concept and the governmental concept with our avowed treatment of the core meaning of original intent. The Revolution established both the personal and the governmental concepts. The personal liberty grants the government governing privileges yet the People retain sovereignty. The government through its republican Constitution seeks to both fulfill its governing responsibilities as well as advance the individual capacity toward self-actualization --- ostensibly by maximizing personal freedom and equality of opportunity while concomitantly balancing freedom with the civic responsibility republican government is reliant upon for survival.
The critical self-expanding dimension of the Constitution is the amendment process. Through it the People retain sovereignty by merely marshalling the popular will, an achievable task where popular consensus genuinely exists or may be created. Through amendment the Nation --- We The People --- may ensure that our government reflects and advances our progressing moral, intellectual, and spiritual consciousness. Only the will to continue our national advance is necessary to achieve it.
In essence, then, and regardless of the admittedly major transformations of our federal system (mainly through this very amendment process: the 14th Amendment), the powerful core content of original intent remains the resonating force in the political and legal system.
The amendment provision may be analogized to the Supremacy Clause: as all conflicting state law and policies pale before the Supremacy Clause, so all Federal Constitutional Law and policies pale before the specter of amendment. Society holds within its own hands the ever-present authority to transform itself, to profoundly or mildly alter the charter of its government and its liberties.
The true meaning of original intent is the popular sovereignty --- We The People. And thus the ultimate purpose of the Constitution is “to free us from itself,” if need be, to effect the will of the popular sovereignty. Ingenious; daring and bold; thrilling.
We must move beyond attempts to discern where we exist as a political constitutional entity today, pointing out inequalities and injustices. Noble as that role is, it is self-defeating. The tide of events surges inexorably. Fixed points are overwhelmed. With a long view we must canvass the scope of our history and traditions, grasp the essential features of our current state, and then focus on efforts toward that destination we wish to reach. Multiple visions beckon. The resources of the Nation --- of the World --- are vast. To marshall these resources --- understanding history, understanding human nature in both its experience and its potential, understanding the palpable possibility of procuring the ideal --- is the vital task of those who truly seek to shape, to understand, to know the future. The Framers of the United States Constitution consummated the greatest political achievement in the history of Mankind. It was inextricably connected with the sacrifices and the visions of the Revolution and of the effervescent harvest of the first great generation of a free American intellect and spirit.
Yet life is a continual series of consummations. Jefferson and Washington did not envision casting Americans into constitutional chains to bind them to a sole vision of reality but instead sought to free Americans to seek an infinite future by constructing a republican government which would restrain tyranny, keep government within a limited sphere, and allow for individuals to fashion their own destinies.
We were not enslaved by the Constitution but were freed. The polar star of that freedom inspires pursuit of higher revelation. Government, society, the Nation exist to facilitate the fashioning of a future of relative freedom, justice, and vision. The enduring lesson of original intent is that we must remain free to trail that elusive specter of relative illusion which casts the colors that define morally and eternally every society and nation and race.
In Search of Natural Law
And The Unvanquishable Radiance
I take as a point of departure two divergent yet mystically, if not practically, similar assertions, the first by Holmes and the second of my own creation. My hope is that these pronouncements will carry a virile resonance throughout the remainder of this traverse, whether or not they re-appear in any strictly recognizable form.
[The demand for the superlative] is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law....The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere....The most fundamental of the supposed pre-existing rights - the right to life - is sacrificed without a scruple not only in war, but whenever the interests of society, that is, of the predominant power in the community, is thought to demand it....The real conclusion is that the part cannot swallow the whole --- that our categories are not, or may not be, adequate to formulate what we cannot know. If we believe that we come out of the universe, not it out of us, we must admit that we do not know what we are talking about when we speak of brute matter....[W]hy should we not be content? Why should we employ the energy that is furnished to us from the cosmos to defy it and shake our fist at the sky? ...If our imagination is strong enough to accept the vision of ourselves as parts inseverable from the rest, and to extend our final interest beyond the boundary of our skins, it justifies the sacrifice even of our lives for ends outside of ourselves....[Philosophy] opens to the forlorn hopes on which we throw ourselves away, the vista of the farthest stretch of human thought,the chords of a harmony that breathes from the unknown.1
In our most primitive and brutal essence, the only Natural Right possessed by mankind is the right to struggle to survive. The Natural Law, sacred construct of transcendent moral and legal authority wrought from rising consciousness and embraced by but an infinitesimal portion of the Race, spreads a rainbow arc above our mortal lives. It shields us not from the pounding elements of physical nature nor from equally savage manifestations from within humanity: murder, torture, warfare, assault, and day to day social hostility and aggression. Its brilliant colours and subtle shadings do not advance the spirit of those whose shrouded vision blocks enlightenment unrelated to personal gain in its myriad forms of power, greed, wealth, dominance, and even mere physical and psychological survival. It is through the chosen few that Natural Law asserts its compelling power, striking chords within elevated consciousness, and reliant upon those lights to more broadly illuminate a protected path for the mass of mankind. Thus, the rainbow of Natural Law does inspire and elevate the mortal mind. Yet no protection is there afforded. Its essence is the protector of the soul. Its constitution renders the bonded soul indestructible in the face of mortal and physical assault and forms the vital link of the human spirit with Eternity itself. The soul, strengthened with inviolability, or at least the distant glimmer of an unvanquishable radiance, may then seek to institute upon earth the Justice of the Eternal. Thus energy passes from the infused soul, from elevated intelligence, to a mortal manifestation resulting in the protection of fundamental rights of human dignity and individual liberty. Through this process but dimly perceived is the Race shielded from slavery to the limited extent it currently is.2
To compare and contrast these two positions requires some method of thought, whether viewed as extensions, which sweep broadly from a more focused assertion, or as condensations or refinements of these already broad principles --- specific structures and inhabitants of an already formed metropolis, perhaps as full of conflicting currents and contradictions as 2nd Century Rome or 20th Century New York. Yet ultimately we face the frightening inquiry: is the city real or is it made of sand, to crumble and disappear quite quickly; or even more troubling, is it but a phantasm, an illusion which never owned a substantive existence?
Both quotations above claim the firm presence of the greater reality. Holmes delights in perhaps gratifying that power by a stubborn and driven existence, maximizing the inherent qualities of the species as it survives in the real world. Comprehension of the qualities of the greater reality is a fit topic for speculation but certainly not rational assertion. I, on the other hand, am willing to assert, perhaps blinded by the presumption of instinct and the mystical thread of psychic and spiritual prophecy, that certain positive manifestations of animal thought and action merge with a compatible universal force. From this force is generated the nourishment of the soul which alone sustains the progressing but struggling human race.
Yet what of the darker forces? What of evil and negative thoughts and actions? Do they likewise merge with a universal force which further ‘nourishes’ the soul? Do we rest on the elementary block of contemplating good and evil? Finally, can evil strengthen the human spirit and thus sustain the mortal existence?
I say no. Before attempting to
calculate why I assume this rationally perilous post, I propose to examine how
universal principles of Light relate to various aspects of current human
existence on earth. Beyond that examination I shall either abandon my post or
Natural Law and Starvation
Does a moral responsibility exist, an ethical mandate, to even fully recognize that a huge percentage of the human race, of our kindred souls, perish and agonize moment to moment from starvation? Recognition is indeed an elementary step, yet at the same time it is fundamental, perhaps even the critical act which may turn the balance toward a human existence that qualifies as based upon core human rights, human freedom, human dignity.
The mere recognition demands a revolution of consciousness. How much more would be required to implement this conception? We feel stripped naked, removed from the real world and its clothing illusions of a good and dignified life which indeed consists of dominance and greed validated and protected by law, when we seek to step outside our everyday insipid conceptions and wrestle with truth itself. Children with the sensibilities and spiritual content of Mozart and Jefferson grovel screaming in pollution and filth, bodies and spirits wasted and torn, eyes glazed with the terror of unnatural and untimely death, while in the liberal and democratic western societies the world’s resources are squandered in a nightmare of ignorance; food production is suppressed for the cause of the great god economics; moral virtue is so perverted that scenes of unspeakable agony may be observed on video followed immediately by utter disavowal as food and alcohol are consumed, sex and sports are indulged, and the most trivial everyday social and financial concerns assume a position of unchallenged supremacy.
So? What is a mere mortal to do? Very little, it may seem. But does not Natural Law impact upon this gloomy scene? Is there no universal principle that cries out that all of mankind are created equal and blessed with unalienable rights such as life and liberty? May it not be asserted that no child should starve to death, not in the abstract but as a real decree of Law? Is the Race so lost to self-destruction that the lust for possession may not be overwhelmed?
Natural Law and Torture
Perhaps no human activity so perversely highlights our mortal dilemma as torture. That the hundreds of millions starve lies beyond the consciousness capacity of most of mankind. Murder within warfare involves a mass hysteria which blinds the higher sensibilities and drags us down into the depths of bestiality. Mass enslavement and even extermination results from some grand design, an emergent structure of moral purity which shall save humanity from itself. Vast events upon an inflated canvas dwarf the solitary individual and sweep him along with the churning currents. Yet torture shines a spotlight upon the human actors upon a stage of sadism. The devil himself arises from murky caverns and possesses the soul of civilized man.
Historically torture has had important political and state purposes, discounting the more random barbarities of the psychopath. It has been engaged in reluctantly by monarchs and generals convinced of the necessity of maintaining their power, employed to crush the ember of opposition before it flames into an inferno of agitation. More often than not, however, it has been delighted in for its own sake, as the most extreme form of punishment for those who have dared to express competing conceptions or assert political challenge. The inner lust for dominion is not hard-pushed to reach a fever of personal enmity in such circumstances, and the torturer soon revels in the agony and helplessness of his enemy.
America disavowed torture in her Age of Enlightenment. Freedom from torture became a natural right of man. Americans have well-maintained this right through over two centuries of human turmoil. Yet the moralistic race has exported torture with despatch. Torturers have been directly subsidized, advice has been freely given to maximize effectiveness, and torture manuals have been produced to aid the grisly procedures.
Torture is rampant in the world today, no question, though subtly refined by some, while practiced in revolting extreme by others. As it relates to Natural Law, I should like to look ever-so-slightly beyond the sadistic sickness of the practice and what the grim or ecstatic fulfillment of the torturers portends for the future of humanity and indeed the essential nature of the animal. I would like to glance briefly at the predominant form of behavior that seems to inspire one person or a group of persons to torture their fellow man.
Indubitably it is the free expression of the human conscience which attracts the demonic glare of the torturers and activates their demonic deeds. This free expression of the human conscience is, not strangely so, one of the foundational blocks of the Natural Law in its essence-driving ascension of the human spirit. And thus is torture the avowed enemy of every true champion of human freedom, spiritual transcendence, and the survival of a divinely-connected humanity. And as we sanction torture around the globe, directly through subsidy and encouragement or indirectly through inaction in the cause of human freedom in its evident universal breadth, we destroy ourselves.
Natural Law Into The Future:
Science, Elitism, and Transcendence
Man is unique in our capacity to peer into and attempt to plan the future. Yet a penetrating view into the future presents a chilling spectre: is there no hope?
The various foreseeable avenues mankind may travel over the coming centuries requires long and elaborate speculation. The exercise must necessarily neglect the infinite paths presented as the journey progresses. They are unforseen and unforeseeable.
The avenue of nuclear war and mass destruction is a familiar topic. The event would either destroy the Race and/or the planet, or would have various alternate effects, such as the plunging of the Race into dark depths of primitivity; the extreme re-alignment of global political power centers; the cultivation of insular societies, some perhaps advancing to great heights of capability; and desperate attempts to prematurely locate courageous groups into the galaxies.
Nuclear weapons are clumsy tools, of course, and will be superseded by more devastating technology, such as laser and particle weapons, which might fracture the globe itself with one impact. Thus we might easily see the futility of dwelling upon destruction as an avenue worth speculating upon, regardless of its probability of occurrence.
True, the Race works feverishly to destroy itself on a number of fronts, with a multiplicity of dangers courted brainlessly. Yet that very daring spirit continues to create and thus expand the vista of human possibilities. Science may create life --- human life --- to a superintending specificity. It might then be supposed that the holders of political authority will be well-positioned to impose values --- social, moral, legal, religious, etc. --- upon a rapidly controlled population. Does this not add a critical urgency to the perennial grasp for power? We might safely assert that the quality of the impelling force controlling the shaping of society and even the human being itself will be greatly determinative of the ultimate destination, or shall we say various multi-staged destinations? Jefferson or Plato would shape a far different creature and society than would Hitler or Stalin.
Yet the likely truth is that no one force will grasp such audacious determining power. Nonetheless, the people will be formed, regardless of a lack of express intentions to do so. And thus instead of an avowed clear program we might suffer though the weight of the mass itself to tug and pull and push the body politic into various configurations. But tradition and the accreting growth has a firm foundation of its own --- it is not likely to create pure beauty, but neither shall it be lightly perverted or overthrown.
What are we talking about? The trends of history, the growth of powerful science and technology, seem to dictate that if we survive physical destruction we shall be enslaved. Modern societies shall tolerate no inequalities, no inefficiencies, and shall not suffer the social beast to be stifled or even inconvenienced for ancient tenets of individual liberty and freedom.
Where seek the Natural Law amidst this vast and obscene surge? Is our best hope the benevolent hand of wise masters illuminated toward positive goals of spiritual and animal transcendence? The question is posed. The alternative mass enslavement perhaps to serve masters of darkness and repression is to forfeit Life itself. The Race has continued to climb, yet physical destruction is not the only path to reach annihilation. We hold the power to shape the very future. The future will be shaped, regardless of individual intent. For the Good and the Wise to forsake control out of a blind commitment to Natural Law in its infant form is to abandon the field to those who shall enslave.
The core message of Natural Law may be gleaned even from the Declaration of Independence, which seeks to free all of humanity as both an end unto itself and as a means to pursue higher truth and carve a future that ascends into unknown regions of transcending realization.
Thus Natural Law may guide the Race toward a greater future. It must not be used to justify ill-founded opposition to an irrevocable sway of social omnipotence which will serve only to eliminate those committed to human dignity and divine capacity.
Natural Law and the World
Everything I work upon is mere thought; nothing is solved, perhaps nothing is achieved. Nature itself is the ultimate enigma. The Sun is immediate; the moon is distant and mysterious; the stars are beyond even the ‘pale cast of thought.’ In the spring all grows and blossoms; in winter death is overwhelming; and then spring begins again. The Sun rises merely to set. Darkness overcomes us merely to be itself overcome. Birth leads to death and death to re-birth. Hunger leads to saturation which likewise leads to hunger. Passions fire and burn out, just as the stars themselves, perhaps to merge with the greater source of energy yet perhaps, alas, to dissipate and vanish. Beauty blossoms in a wash of loveliness and decays in tragic descension. Our energy is turned to heal, to comfort, and to create; and also to kill, to torture, and to destroy. The golden trumpet lifts our weary souls to Heaven and also portends the clash of war, literally hell on earth.
What is wonderful is not that we despair to reason of our existence but that we persevere in our dogged attempt to reach fruition. How we struggle on the mortal plane! The requirements of daily existence consume our energies. Trivial pursuit dominates our finite minutes, hours, and years.
Yet we continue to be actuated by grander or more sublime designs. Are they but the momentary glimpses of some heartening illusion, or may we say that the Natural Law is somehow implicated within this web of effects? We must seek further.
Natural Law and Republican Government
The blood, or spirit, bond between Natural Law and Republican Government deserves extended dissertation, analyzing the vital elements, yet assertion of the basic truth of the connection may presently suffice. That the People themselves have the alleged ultimate voice in the affairs of government is a revolution of great magnitude. While dictatorship and totalitarianism represent everything that is darkest in the human spirit, Republican Government aspires toward every thing that seeks enlightenment. Freed from the tyranny of omnipotent will perverted toward suffocation and slavery, Humanity strives to fix itself within the tumultuous and teeming Universe. Freed for self-expression and self-fulfillment, yet bound toward responsibility and virtue, true republicans slowly ascend that mystic ladder that leads toward the transcendence of the human spirit. But it may lie beyond our mixed grasp; pure good may be unattainable on earth or within the known universe, or within the greater realm of which we know nothing and upon which we may only generalize from our tiny capacities. Yet we were born with the will to strive, and the greatest lights among us have blazed at least a vision, at best a sacred path.
Republican Government is the embodiment of the Natural Law connection. The relative perfections of its structure and functioning is correlative with the degree that its founders and continued adherents have actualized that connection.
Natural Law and Genocide
We are all aware, today, of the great instance of national extermination undertaken in this century. As with starvation, awareness of the deeds is relative, and few among us touch the horror of the scene. Yet most of us feel sufficiently to condemn the nazi’s and their death camps. Man’s technology rapidly increases; the magnitude of impacts grows seemingly geometrically. By the 1940’s the Germans were able to achieve their purposes to an unprecedented degree. The means of extermination today are infinitely superior and thus almost unimaginably more terrible. It has been argued that a practice once uncovered is infinitely more likely to be again attempted than had it never emerged from the tunnels of chance; thus the precedential value of visiting retribution is of paramount importance. This assertion is undoubtedly true.
Yet we must at this juncture question whether German actions were indeed such an historical first. The question once posed is obviously answered. While the magnitude of sheer numbers, and perhaps the perversion of means as well, was unprecedented, the act of genocide per se is well known throughout recorded history, while informed speculations concerning the Race’s unrecorded history in its distant past quickly yields untold yet vivid tales of the most horrendous exterminating barbarities. Well enough, recorded history alone shall suffice.
The ancient Hebrews are perhaps our quintessential example of the iron will of extermination. No contesting people were to survive the match. Once the soldiers were exterminated the women and children and aged followed, as well as the animals of the field. So severe was the stricture of total annihilation that occasional lapses of the policy were blamed for subsequent misfortunes. Remember as well that this extermination was carried out by hand, with the blood of the innocent gushing forth to stain the hands, the feet, the eyes, even the very souls, of those who wielded the swords of iron.
In ancient times an entire nation was often contained within a single city fortress. History is replete with total annihilation when cities were captured. Even when women and children were spared to be abused and enslaved, the nation was destroyed, achieving a practical genocide, while the survivors perished or were ultimately co-opted within the blood of the conquerors.
As civilization has progressed the most extreme forms of genocide have been tempered, but only to a degree, and perhaps only superficially. The Jews have endured many massacres. In 15th Century Germany hundreds of thousands of Jews were butchered within a few short weeks. The Americans largely exterminated an entire indigenous population: the state governments actually paid for the scalps of women and children. A further canvass of distant history is both needlessly time-consuming and unnecessary. Recently an entire village of Kurds were massacred in Iraq, doomed to a horrible gut-wrenching expiration upon the orders of men who still blandly walk the earth, free from the avenging hand of international law and justice, some drinking and dancing this very moment, and soon to sit in civilized council with the spineless representatives of the United States Government.
Various responsible nazis met their doom at the hands of an international tribunal and fledgling international law. Yet history proves that their deeds were not unprecedented. Stalin murdered millions. The victims of Mao Tse Tung have been numbered at over twenty million, perhaps forty. Men have practiced mass extermination upon their own peoples! And are the nazis to be punished? May they be saved because historical precedent is on their side?
The elucidations of Jackson were brilliant, powerful, and fired by Divine connection. Is there an advancing human consciousness that may fix liability regardless of the lack of palpable historical distinction? Shall the Race accept the dominance of the blackest chasms of the human being and await in perturbed yet resigned apathy for enslavement and/or self-destruction? Indeed, the ‘journey of a thousand miles begins with a single step.’
The Unvanquishable Radiance
Jackson’s prosecution, the international inquiry and condemnation at Nurenburg, was based on Natural Law and represents the vision of Mankind struggling to ascend the spiritual and moral consciousness of the Race. As the moral character may be strengthened by good deeds just as the body may be strengthened by exercise and positive habits, so may the moral character and consciousness be debased and even destroyed by evil deeds and destructive behavior just as the body is debased by greed, gluttony, addiction, and negative habits.
Thus as well is the Law of Nations and of Mankind strengthened and uplifted by the precedents of an expected ethical and moral minimum beneath which no member of the Race may descend and yet lay claim to the sanctity and protection of human society. Yet what of such absolute moral judgment implemented by a competing system of values, such as that of the Russians, the Chinese, or the Guatamalans? Varying societies will define their own minimum standards ‘beneath which a human may not descend,’ such act punished with extermination, and, as Holmes asserted, willing to fight and impose --- and die in the attempt if need be --- their own vision of Life and God.
Are there premises validated over the centuries of known human history sufficiently to qualify as “higher truths?” Those prophets who have presumed to have touched the Face of God have propounded various moral truths from which we may perhaps glean certain core revelations. Life, not death, has been the quest; they point to the Sun, and to the stars. Those poets who have presumed to have perceived Truth, from Plato to Shelley, have perhaps asserted a mass from which core truths may be obtained. Love, not hate, has been the quest; Good, not evil, has fired their genius; they point to the Sun, and to the stars. Composers, painters, mystics, even the blood-drenched conquerors, have sought to build, to create, to achieve immortality and glory. Justice no more than Divinity itself may be defined, yet the philosophers never cease to seek it. Philosophers and artists glorify beauty and love as they possess it, however fleeting may be the embrace, and mourn the absence of both --- blacken life itself in shades of despair when beauty and love seem beyond their grasp.
To reduce to first principles, the newborn must have warmth and the liquid nourishment of its mother to survive even a day; deprivation of either does not retard life but annihilates it. There exist qualities which alone sustain Life. And may not these highest qualities, embodied as moral values of Natural Law, be spread around the globe in this Age of pervasive and instantaneous communication?
Has not every human society demonstrated a yearning to capture and qualify the spiritual essence? From the jungle beat throbbing from hollowed logs to the chants and utterances of the ritual circle to the agonizing penetration of silent mystic meditation to the ecstatic thrill of the spiritual climax of Beethoven’s Ninth Symphony, Humanity has relentlessly pursued spiritual truth.
Correlative to this search is the passion to connect with eternal existence, to rob the brutal logic of death of its dreadful victory. Yet beyond the longing of the aged to maintain their waning connection to mortality, beyond the agony of the survivor of tragic untimely death of lover or child, an agony which transforms the world and creates both hell and future paradise; beyond these bold highlights, I say, we see the human animal in peak form, dwelling not on the sadnesses of twilight but grasping the joys and triumphs of energy and youth, even so experiencing soul-shattering revelation, absorbing rays from the infinite, peering often reluctantly into the past and future, and communing with that Spirit every society has had to struggle to comprehend. Connection has lifted the vista of the mortal existence and, however fleetingly, gripped the solitary struggling soul to Life beyond Time and Space.
While the great prophets and artists and healers and thinkers may turn such spiritual encounters into tangible reality which all the world may marvel to behold, every living being, while not possessed of such acute perceptions nor skills, is possessed of the energy connection of life to Life. Mankind seeks, and worships, the Divine Power not because they are taught to and from mere motives of fear of oblivion or hell fire. The same energy and matter which formed the stars likewise formed the earth; the creatures which crawled from the sea are of the same essence as the human animal. The connection of all life is irrefutable. There stands universal truth as immovable stone, from which may be carved principles grounded in solid truth.
Life on earth is a direct descendant of the Sun; nothing exists without it: may we not then declare another universal truth? What statues may be carved from this rock? The Sun wholly supports our existence, yet what characterizes the sun? Light: it emblazons our mortal reality. Warmth: it soothes our terrified souls throughout their perilous tenure as animal life. Hope: its appearance inspires our struggles and supports us through tragedy and pain.
Is the Sun not, however, but one of the seemingly infinite fiery spheres which hurtle through an incomprehensively vast universe at speeds likewise beyond human perception? Another universal truth? What may we carve from this unfathomable stone? We near the limits of human comprehension.
Is not the final refuge, then, in the faith in an Infinite Eternal and Just Source of all Life, a faith blossoming despite the recognition that logic dictates its fallacy? If the history of the Law is experience and not logic, how much more so for the history of humanity, the Race being at once the creators, the ruled, the rulers, and indeed the gods, of the Law? And experience --- our collective history as far back as consciousness may be darkly perceived --- teaches us that all life strives to survive, to reach toward the Source of its existence, and that the roads thereto may only be travelled with Light, with warmth, with nurturance, and with instinctual spiritual mission. And though some roads submerge into darkness and the bitter chill of death and negation, each such road disappears from the landscape, while what remains is the ever-ascending of the human spirit, risen from the Infinite and ever-striving to return.
HIS INFLUENCE UPON THE ESTABLISHMENT OF THE FUNDAMENTAL
PRINCIPLES OF AMERICAN CONSTITUTIONAL LAW
TABLE OF CONTENTS
I. OVERVIEW: THE STRANDS OF JEFFERSONIAN PRINCIPLES
A. NATURAL LAW
1. Summary View
2. Declaration of Independence
3. Bill of Rights
4. Fourteenth Amendment
B. AMERICAN GOVERNMENTAL SYSTEM
1. Separation of Powers
2. Representational Democracy
b.) consent of the governed
a.) aristocracy of virtue and talent
b.) freedom of the press
c.) democratic consciousness
5. Property Law Reform
6. Church And State
7. National Union
8. Independent Judiciary
A. THE PRINCIPLES OF REVOLUTION; 1774-1776
1. Summary View
2. National Resolutions
3. Declaration of Independence
B. ESSAYS IN PRACTICAL CONSTITUTIONAL CONSTRUCTION; 1776-1779
1. Virginia Constitution
2. Legal Reformations In Virginia
C. THE CONSTITUTION AND THE BILL OF RIGHTS; 1786-1789
D. ESTABLISHING REPUBLICAN GOVERNMENT; 1789-1801
1. Jefferson In Dissent
2. Kentucky Resolutions
3. Presidential Election
Fundamental and critical principles of American constitutional law, comprising the very essence of our republican form of government, were inspired and effected by the zeal and labors of Thomas Jefferson. Jefferson blazed a beacon of enlightenment, directing and implementing profound change and guiding individuals and society toward the true path of liberty and republicanism.
Whether through bold strokes such as the Summary View and the Declaration of Independence, which immediately impacted public affairs and charted the course of American history, or implantations fermenting into the Nation’s psyche, such as the 1776 proposals for freedom of religion and press, Jefferson’s influence on America’s constitutional development was singularly decisive. The impact was profound two hundred years ago; today the power of Jeffersonian principles remains the vital force of American constitutional law in its commitment toward both the maintenance of individual liberty and its aspirational vision of a more perfect justice for Mankind.
The purpose of this work is to trace, through the use of Jefferson’s political writings, both the development of his constitutional and governmental principles and the impact Jefferson made on American constitutional law. Through analysis of these writings, both literally and in context of contemporaneous events, one may discern the flowering of Jefferson’s ideals upon the American political landscape.
The work is divided into two sections. The first is a brief overview of Jefferson’s contributions to the development of the American governmental system and constitutional law, separately viewing particular strands of Jeffersonian principles and theories. The second section consists of a chronological survey from 1774 to 1801, the period during which Jefferson’s major contributions to constitutional principles was consummated. The purpose of the chronology is to view in perspective the evolution of Jefferson’s principles and their impact. The strands of Jeffersonian principles do not emerge distinctly but interweave in varying patterns during different time periods, ultimately forming an entire fabric which indeed constitutes the essential character of American constitutional law.
I. AN OVERVIEW: THE STRANDS OF JEFFERSONIAN PRINCIPLES
A. NATURAL LAW
Jefferson’s conception of natural law was in
the 18th century, and remains today, the highest ideal of the American
political/social system and of American constitutional law. That humanity
possesses inalienable rights government cannot legitimately infringe was the
core of Jefferson’s natural law philosophy. In the Summary View of the
Rights of British Americans, written in July, 1774, Jefferson based the
revolutionary struggle for political power on the radical foundation of natural
law. The Declaration of Independence in 1776 founded a Nation on the
principles of natural law, granting Americans unprecedented rights of political
and social liberty.
The principle of individual rights being beyond the reach of government was manifested in the Bill Of Rights, which Jefferson zealously campaigned for throughout 1788 and 1789, and which specifically protected liberties Jefferson had pronounced as critical for the maintenance of republican government: freedom of speech, religion, and press; the right of personal security from unlawful searches, seizures, and imprisonment; and the right of trial by jury.
The impact of Jefferson’s natural law philosophy has continued to shape the development of American constitutional law. Considered by many at the time to be superfluous or even foolhardy1, the Bill Of Rights has proven to be the critical guarantor of freedom for Americans into the 20th century. The constitutional development of federal protections has continued to evolve toward the fruition of Jefferson’s essential principles on personal liberty. For example, First Amendment doctrine has currently reached a point of harmony with Jefferson’s pronouncements two hundred years earlier.
1 See Marshall, C.J., in his Life of Washington, V.II, p. 166.
The most powerful impact of Jefferson’s natural law pronouncements, however, has been in the massive power of the Fourteenth Amendment. The guarantee of Due Process and Equal Protection for all Americans is derived directly from the Preamble of the Declaration Of Independence. The amendment was enacted to effect progress toward the creation of a nation whose fundamental political doctrines and constitutional rights more essentially strove toward the ideals of justice and political equality as announced in the Declaration. Not only was the commitment of the federal government to be strengthened toward the fulfillment of the ideals of the Declaration, but the impelling necessity for such fulfillment had grown to the degree that the basic tenets of political and social justice were to be enforced upon the state governments as well, thus ensuring a nationwide guarantee of fundamental justice.
The development of Fourteenth Amendment jurisprudence has clearly borne out this analysis, albeit far beyond what many of the ratifiers of the amendment had considered. Due Process protection has, foremost, enforced the absolute requirement that government respect the fundamental principles of justice. This indeed was the essential creed of Jefferson. That further concepts of natural law have tenuously emerged, affording integral personal liberties, powerfully illustrates the impact of Jefferson’s natural law; that the potential of Due Process is limited only by the Nation’s conscience even more profoundly illuminates the efficacy of natural law in both inspiring and effecting the higher forms of human justice and enlightenment upon which Jefferson’s spiritual descendants base their faith in the future of humanity.
Likewise, the Equal Protection clause of the Fourteenth Amendment has grown increasingly more powerful as American society has demanded the fulfillment of Jefferson’s immortal proclamation that all men are created equal. From that seed has grown a national consensus that equality before the law is a vital ingredient of a more civilized nation. The rights of minorities, women, and the poor have been ever-more firmly established in American law through the Equal Protection clause, which, like Due Process, is limited only by the conscience of the American People.
Thus the firm foundation of the individual rights of Americans is the Bill of Rights and the Fourteenth Amendment, the essential spirit of which is directly linked to Jefferson and his establishment of natural law, individual rights against government, and radical precepts of the very purpose of government being to create and nurture public happiness and equality before the law.
B. AMERICAN GOVERNMENTAL SYSTEM
A vital Jeffersonian contribution to American constitutional law was his advocacy of an effective separation of powers and system of checks and balances. Dwarfed in popular lore by the mystical embracement of his natural law doctrines, Jefferson’s impact upon the practical construction of the American system of government was fundamental. Before American independence had ever been declared, Jefferson had drafted a constitution for Virginia which comprehended major elements of the United States Constitution of 1787. Jefferson’s vision of a complete separation of powers and system of checks and balances as put forward in his 1776 Virginia constitution and as elaborated in his Notes On Virginia, 1781-1785, clearly formed the basis of Madison’s Virginia Plan of 1787 and brilliantly constructed checks and balances theories in the Federalist.
Thus the very practical foundation of American constitutional government may be traced to the genius of Jefferson. This assertion comprehends more, however, than separation of powers. At the very base of the American governmental system is the Jeffersonian concept of representational democracy. This includes the inherent power of a people to be self-legislating and the critical foundational concept that all government derives its powers from the consent of the people. These principles were first proclaimed in the Summary View and the Declaration Of Independence, largely enshrined by the Constitution, and solidified by the Republican electoral victory in 1801.
Powerful aristocratic opposition existed to any effective system of popular representation in government. The triumph of the popular system is most fundamentally laid to the essential nature of the American people. Jefferson relied upon this, as well as a peculiar notion of American pre-destination of establishing liberty and republican government, born from the unique heritage of Americans and nurtured by the Revolution and its lofty ideals of freedom.
Jefferson’s commitment to republicanism is often over overlooked due to its facially obvious nature. Independence from England did not necessitate the creation of a republican form of government, however. In fact, America had already developed an entrenched social system of aristocracy. In Virginia, for example, a landed aristocracy had long dominated public affairs. Jefferson attacked this system rigorously, and his republican reforms proved determinative. Nationally, even after the adoption of the Constitution anti-republican sentiment was strong within government.
Despite the possible inevitability of the rise of democracy in America due to the nature of its citizens and the expanding western vista, Jefferson’s struggle to stem the tide of reaction throughout the 1790’s and to firmly establish the “true principles” of the Revolution must be viewed as critical, and as important on the practical plane as any other of his achievements. Jefferson’s principled stand in support of republicanism and democracy was a critical influence on the course of American constitutional development.
Connected to this concept is another basic Jeffersonian principle which embraces a variety of manifestations: education of the people. Jefferson was convinced of the ultimate wisdom of the people when rightly informed. First, he strove his entire life to institute a system of popular education which would foster his ideal of the ‘aristocracy of virtue and talent.’ This concept has remained a cherished American ideal, demonstrated by the vast system of public education created in the 19th and 20th centuries as well as the underriding American goal of a society which affords equal opportunity for all citizens. Second, this principle establishes the practical necessity for freedom of the press for a successful republic. Without full information available to the people, informed decision-making cannot take place and, in fact, the system itself will be subverted while the people, bound by ignorance, will be powerless to prevent it. Thus we have the concept of a free press for the maintenance of a healthy democratic consciousness. This principle has endured throughout our history.
For the creation of the aristocracy of virtue and talent, Jefferson strove to effect major reforms of the legal and economic system in Virginia. He led the struggle to abolish primogeniture and entail, thus striking a crippling blow to the political grip of the landed aristocracy.
A powerful and lasting legacy of Jefferson was the American commitment to a separation of Church and State and the individual right of unregulated practice of religious conscience. Jefferson undertook the task of breaking the strangle-hold of the church on the political and social life of the people. The tyranny of the church over the lives of the people in Europe and in parts of America, and the strangulating chains the clergy cast upon the freedom of human thought and progress, was an obsession for Jefferson. His Bill For Religious Freedom was a landmark in the history of Man and led directly to the First Amendment of the United States Constitution.
An essential Jeffersonian principle often overlooked was the early and unyielding commitment to national union. The effective union of the states was the very purpose of the Constitution, while its strengthening and maintenance has been a major focus of American constitutional law. While the foremost position for the construction of a viable union may be conceded to Washington, and while Hamilton and Marshall may be considered the chief architects of the powerful national system, Jefferson was a committed nationalist from even before the outbreak of warfare with England and strove throughout his political career to maintain not only an effective but a republican union.
Perhaps the most critical Jeffersonian principle relating to the practical implementation of American constitutional law and the survival of republican government springs from the Separation of powers philosophy: the independent power of the judiciary to safeguard the individual rights of Americans. Jefferson clearly foresaw the necessity for the Bill Of Rights in the context of a sacred charter within which the judicial branch could entrench itself. Confronted by the barrier of a charter of liberty enforced by independent judges of the highest character and learned in the judicial tradition, the legislative and executive branches would be effectively restrained from implementing tyrannous designs. This tradition has grown to become the very hallmark of American constitutional law. The judiciary, and in particular the United States Supreme Court, has represented the very highest ideals of the American Race. It has overall well-protected the individual freedoms of Americans and has consistently moved the Nation forward toward the realization of those ideals powerfully pronounced by Jefferson in the Declaration Of Independence.
With this basic overview of Jefferson’s essential political and constitutional principles in view, we can perhaps more clearly grasp, through the following chronology, Jefferson’s influence upon the development of American constitutional law in its most intrinsic elements.
A. THE PRINCIPLES OF REVOLUTION; 1774-1776
“The God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.” A summary View Of The Rights Of British Americans, July 1774.
Publication of the Jefferson Bill Of Rights, later entitled A Summary View Of The Rights Of British Americans, marked Jefferson’s entrance to national and international prominence as a principle advocate of American rights and liberties. Jefferson had been at the forefront of revolutionary activities within Virginia. As a leading member of the radical clique in the Virginia Assembly, he was instrumental in drafting and passing resolutions providing for a nationwide system of committees of correspondence and for a state-wide day of fasting and prayer designed to focus public attention on the escalating struggle for political rights. Jefferson helped organize resistance within Albermarle County and drafted a number of political resolutions, culminating in the Summary View.
The Summary View unequivocally asserted the political rights of the colonists, matching and surpassing the current tide of political thought. In the Summary View we see two principle themes of Jefferson’s political creed already emerging, the sacred rights of nature and the function of government to promote happiness of its citizens. “[The colonists’ ancestors] possessed a right which Nature has given to all men, of departing from the country which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as, to them, shall seem most likely to promote public happiness.”
Jefferson also asserted the complete lack of Parliamentary authority over the Colonies. “The true ground on which we declare these activities void is, that the British Parliament has no right to exercise authority over us. ...Not only the principles of common sense, but the common feelings of human nature must be surrendered up, before his Majesty’s subjects here, can be persuaded that they hold their political existence at the will of a British Parliament.” Inherent within this denial of parliamentary authority was the principle that legislative power arises from within the people themselves. “From the nature of things, every society must, at all times, possess within itself the sovereign powers of legislation.”
Jefferson struck upon a theme he remained dedicated to, the dangers of a legislative tyranny, leading to his proposals for a governmental system of separation of powers and checks and balances. “History has informed us that bodies of men, as well as individuals, are susceptible to the spirit of tyranny. ...Were this to be admitted [parliamentary authority], instead of being a free people, as we have hitherto supposed, and mean to continue ourselves, we should suddenly be found the slaves not of one but of 10,000 tyrants.” Id.
Jefferson also stressed the importance of trial by jury. “[A defendant] stripped of his privilege of trial by peers of his vicinage...is tried before judges predetermined to condemn.” Id.
When Jefferson proclaimed that the Colonists were “A free people, claiming their rights as derived from the Laws of Nature, and not as the gift of their chief magistrate,” id., we witness the declaration of a powerful political creed, destined to shake the governing structures not only in America but throughout the world, sundering the basis of the rights of the people form the authority of kings and emperors. Thus within the Summary View, two years before the Declaration of Independence, are announced most of the critical principles that sustained the American Revolution and gave birth to the first Republic in the world’s history created from the avowed political rights of a nation’s people.
Jefferson’s Bill Of Rights was considered too radical by the majority of the Virginia Assembly and was not used in drafting the instructions to the Virginia delegates to the First Session of the Continental Congress. The Summary View was carried to the Congress, however, and Jefferson was catapulted into the ranks of the revolutionary elite.
Lord North’s Conciliatory proposal to the Colonies in 1775 was first officially answered by the Virginia Assembly with Resolutions drafted by Jefferson. “Next to the possession of liberty, we should consider such reconciliation the greatest of all human blessings. . . . With pain and disappointment we must ultimately declare it only changes the form of oppression, without lightening the burthen.” Virginia’s Resolutions To Lord North, April 1775. It is instructive to note the degree of nationalism which had already become embedded within the political philosophy of the prevailing group. Jefferson was among the first Americans committed to a truly national union. “We are now represented in General Congress, by members approved by this House where our former union it is hoped will be so strongly cemented that no partial application can produce the slightest departure from the common cause. We consider ourselves as bound in honor as well as interest to share one general fate with our Sister Colonies, and should hold ourselves base deserters of that union, to which we have acceded, were we to agree on any measures distinct and apart from them.”
Jefferson was sent to Congress as a Virginia delegate in 1775 and was quickly chosen to draft a Declaration Of Causes For Taking Up Arms. The final version adopted by Congress was a fascinating amalgamation of Jefferson’s draft and one written by John Dickinson.1 Jefferson’s work was both a restatement of the Summary View and a forerunner of the Declaration Of Independence.
1See Boyd, I.
Jefferson announced the right of Americans to be self-legislating, and asserted that the dangers of foreign legislative authority had been tyrannously consummated. “By one act they have suspended the powers of one American legislature and by another have declared they may legislate for us in all cases whatsoever. These two acts alone form a basis broad enough whereon to erect a despotism of unlimited extent.” Declaration Of Causes For Taking Up Arms, June 1775.
A thread in Jefferson’s creed is that Americans are by their nature, and were destined to be, free and independent under a republican form of government. Beyond the inherent right of every people to be self-legislating, Americans were constitutively unique. “Our forefathers, inhabitants of the island of Great Britain, left their native land to seek on these shores a residence for civil and religious freedom, at the expense of their blood, to the ruin of their fortunes, with the relinquishment of everything quiet and comfortable in life, they effected settlements in the inhospitable wilds of America.” Id.
The Declaration Of Causes was Jefferson’s first great action upon the national stage, and he threw himself into the task with energy and passion. “We should be perfidious to posterity, we should be unworthy that ancestry from whom we derive our descent, should we submit with folded arms to military butchery and depredation to gratify the lordly ambition, or sate the avarice of a British Ministry. We do then most solemnly, before God and the world declare, that, regardless of every consequence, at the risk of every distress, the arms we have been compelled to assume we will use with perseverance, exerting to the utmost energies all those powers which our creator hath given us, to preserve that liberty which he committed to us in sacred deposit.” Id.
Jefferson was assigned by Congress to draft the American response to Lord North’s Conciliatory Proposal, the thrust of which is consonant with that authored for Virginia. The closing of the document illustrates Jefferson as the conscience of a new Nation. “They claim the right to alter our charters and established laws, and leave us without any security for our lives and liberties. ...When the world reflects, how inadequate to justice are these vaunted terms; when it attends to the rapid and bold succession of injuries, which, during a course of eleven years, have been aimed at these colonies; . . . when it recollects that the Minister himself on an earlier occasion declared ‘that he would never treat with America till he had brought her to his feet,’ and that an avowed partisan of the ministry has more lately denounced against us the dreadful sentence ‘delenda est Carthago,’...when it considers the great armaments with which they have invaded us, and the circumstances of cruelty with which they have commenced and prosecuted hostilities; when these things, we say, are laid together, and attentively considered, can the world be deceived into an opinion that we are unreasonable, or can it hesitate to believe with us, that nothing but our own exertions may defeat the ministerial sentence of death or abject submission.” Resolutions As Adopted By Congress, July 31, 1775.
The Declaration Of Independence is the most famous and revered political document in the world today. It captured the essence of a new age spirit and announced to a repressed world population an ideal of freedom and individual fulfillment, and escape from political and social slavery. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Declaration Of Independence, July 1776.
Derived directly from this Preamble, proclaimed as a bolt of lightning to the citizens of America and thereafter to the citizens of the world, was the Bill Of Rights, the Equal Protection and Due Process guaranties of the Fourteenth Amendment, and the very basis of America’s future governmental system: representational democracy. It is critical to comprehend that this Declaration, which might well have symbolized only the American consensus of the right to self-government, did far more. It raised the stakes of this revolution and transformed the struggle from one focused on the rights of Americans to the rights of Mankind. More than a disavowal of the legitimacy of British government over America, the Declaration as conceived and executed by Jefferson sundered the legitimacy of every government in the world. No more visionary, more radical, more revolutionary stroke had every been so blatantly and effectively delivered. The impact upon the peoples of the world has been and remains massive, while the sacred ideals of the Declaration are today enshrined, not as mere visions or ideals but as political reality, in the highest pronouncements of American constitutional law.
Had he uttered his immortal prophecy and disappeared from view, Jefferson would have ever-occupied an elevated post in the history of Man. Yet it remained to live up to these ideals in an age of crisis and to establish them as palpable reality. In his fading hours on earth Jefferson mused over the Declaration and voiced his undying commitment to the rights of Man. “[The Declaration Of Independence] 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. That form which we have substituted, restores the free right of the unbounded exercise of reason and freedom of opinion. All eyes were opened, or opening, to the rights of man. ...The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” To Roger Weitman, June 24, 1826.
B. ESSAYS IN PRACTICAL CONSTITUTIONAL CONSTRUCTION; 1776-1779
“Should our Convention propose to establish now a form of government perhaps it might be agreeable to recall for a short time their delegates. It is a work of the most interesting nature and such as every individual would wish to have his voice in. In truth it is the whole
object of the present controversy; for should a bad government be instituted for us in future it had been as well to have accepted at first the bad one offered to us from beyond the water without the risk and expense of contest.” To Thomas Nelson, May 16, 1776.
Jefferson had somewhat reluctantly returned to Philadelphia in May 1776 as Virginia was on the verge of re-making its government. The principles it was based upon would decide whether one oppressive government would be substituted for another; whether a government formed through the political authority of the people and operated for their protection and interest could in reality be established or was merely an idle vision.
Jefferson was a world away from Virginia politics, enmeshed within the whirlwind of warfare and national construction, yet between early spring and June 13, 1776, he created three drafts of a constitution for Virginia, complete plans for an entire system of government at once both practical and revolutionary. The preamble grounded the constitution upon “The authority of the People.” The body of the constitution began with the proclamation: “The Legislative, Executive, and Judiciary offices shall be for ever separate.” Third Draft, Jefferson Constitution, June 13, 1776.
The similarities between Jefferson’s constitution and that adopted by the United States, as amended, are striking: complete separation of powers between three branches of government; bi-cameral legislature consisting of a house of representatives and a senate; financial measures initiated in the house; guarantee of jury trials; freedom of religion and press; civil over military authority; executive constrained by constitutional limits; and the People
constituting the fundamental basis of government. Also worthy of note are provisions for no standing army in peacetime, equal rights for women in inheritance, limitations on capital punishment, and abolition of slavery, entail, primogeniture, and torture.
Having been denied a request to be relieved from Congress to join the deliberations in Virginia, Jefferson forwarded his third draft in the hope of having it adopted by the Virginia Convention. By the time it arrived the Convention had already adopted a constitution after prolonged intense debate. Yet such was Jefferson’s stature in Virginia even before the Declaration Of Independence that his preamble was adopted and four or five other provisions were extrapolated into the instrument.1
Jefferson disliked Virginia’s Constitution and worked toward amending or re-writing it. “The Constitution was formed when we were new and inexperienced in the science of government. It was the first, too, that was formed in the whole United States. No wonder then that time and trial have discovered very capital defects in it.” Notes On Virginia, XIII, 1783.
He drew up another constitution for Virginia and appended it to his published Notes On Virginia in 1785. Jefferson particularly objected to the lack of an effective separation of powers and system of checks and balances. “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. ...An elected despotism was not the government we fought for, but one which not only should be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
1See Boyd, I
Jefferson composed the Notes on Virginia from 1781 to 1783, a period of time when he was often in the exclusive company of three young proteges: Madison, Monroe, and Short, whom he strongly guided toward republican principles. Madison, particularly, intellectually adopted Jefferson’s substantive principles of government. Jefferson’s influence upon Madison may objectively be seen by comparing Jefferson’s Virginia constitution of 1776 with the national constitution proposed by Madison in 1787; by the powerful Jeffersonian logic in Madison’s work in the Federalist; in the major effort of Madison in passing Jefferson’s legislative reforms in Virginia, including the heralded Bill For Religious Freedom; and in Madison’s zeal in championing the Bill Of Rights in 1789.
Jefferson published the Notes On Virginia while in Paris in 1785, sending one of the first two copies to Madison. It is clearly worth noting the substantial similarity of the language underlined in the passage above with that of Madison in Federalist #47, as well as the subsequent lines with the general checks and balances theme developed by Madison in the Federalist. It is little wonder that Jefferson wrote to Madison on November 18, 1788, that Madison’s work in the Federalist was “The best commentary on the principles of government which ever was written.”
Jefferson also found fault with the Virginia provision which established a similar selection process for both senators and representatives. “The purpose of establishing different houses of legislation is to introduce the influence of different interests or different principles. ...We do not, therefore, derive from the separation of our legislature into two houses those benefits that a proper complication of principles are capable of producing, and those which alone can compensate the evils which may be produced by their dissensions.” Notes On Virginia, XIII
Despite his disappointment over the government Virginia had chosen and a doubtless belief that this own constitution represented the very height of ascending political wisdom, Jefferson did not engage in divisive criticism but in fact became a principal apologist while shining a light toward greater achievement. “For though we may say with confidence, that the worst of the American Constitutions is better than the best which ever existed before, in any other country, and that they are wonderfully perfect for a first essay, yet every human essay must have defects. It will remain, therefore, to those now coming on the stage of public affairs, to perfect what has been so well begun by those going off it.” To Thomas Mann Randolph,
July 6, 1787.
While too late to make a definitive mark upon the state constitution, upon his return to Virginia in the fall of 1776 Jefferson undertook the implementation of far-reaching legal and legislative reforms. Shortly after his return Congress appointed him an ambassador to France. Jefferson agonized briefly, then declined: “I saw...that the laboring oar was really at home.” Autobiography. After successfully sponsoring a bill establishing courts of law, Jefferson drafted and helped pass a bill abolishing entail in favor of holdings in fee simple. “The transmission of property from generation to generation, in the same name, raised up a distinct set of families, who...were thus formed into a patrician order. ...To annul this privilege, and instead of an aristocracy of weal, of more harm than benefit to society, to make an opening for the aristocracy of virtue and talent...was deemed essential to a well-ordered republic.” Autobiography. Jefferson’s initial attempt to reform the state’s religious establishment “brought on the severest contest in which I have ever been engaged.” Autobiography. Only the repeal of certain criminal sanctions imposed for religious deviance could be effected at that time.
Jefferson also introduced a bill for a revision of the laws, the purpose of which was to commission a committee to codify and where necessary re-write the laws of the state, including English statutes and common law as adopted in Virginia, in order to conform with the new system of government. “When I left Congress in 1776, it was in the persuasion that our whole Code must be reviewed, adopted to our republican form of government, and...corrected, in all its parts, with a single eye to reason, and the good of those for whose government it was framed.” Id. Ultimately Jefferson and Wythe alone “brought the whole body of British statutes and laws of Virginia into 127 acts most of them short.” To Skelton Jones, July 28, 1809. “We had, in this work, brought so much of the common law as it was thought necessary to alter, all the British statutes from Magna Carta to the present day, and all the laws of Virginia...which we thought should be retained, within the compass of 126 bills. ...Some bills were taken out, occasionally and passed; but the main body of the work was not enacted in the legislature until...1785, when, by the unwearied exertions of Mr. Madison...most of the bills were passed with little alteration.” Autobiography.
Jefferson and Wythe labored on the revision for two and a half years, submitting it finally on June 28, 1779. In these bills Jefferson poured his political and social creed. More than revisions, more than compilations, these labors played a major role in transforming a monarchy and aristocracy into a republican democracy, and moreover established these changes upon a basis of political values and ideals that once planted might never be overthrown. “I consider four of these bills, passed or reported, as forming a system by which every fibre would be eradicated of ancient and future aristocracy; and a foundation laid for a government truly republican. The repeal of the law of entail. ...The abolition of primogeniture. ...The restoration of the rights of conscience. ...The bill for a general education; and all of this would be effected without the violation of a single natural right of any one individual citizen.” Autobiography..
Jefferson’s “bill for a general education” was entitled A Bill For The More General Diffusion Of Knowledge. “Experience hath shown, that...those entrusted with power have, in time, and by slow operations, perverted it into a tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts which history exhibiteth, that, possessed thereby of the experiences of other ages and countries, they may be able to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes.” A Bill For The More General Diffusion Of Knowledge, 1779. Jefferson expounded upon his concept of the aristocracy of virtue and talent. “Those persons, whom Nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth, or other accidental conditions or circumstances.” The Bill was only adopted in part and was never truly effective during Jefferson’s lifetime.
The passion and conviction Jefferson possessed on the subject is highlighted by a letter he wrote from France while many of his reforms were being enacted back in Virginia. “I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom and happiness. ...Preach, my dear sir, a crusade against ignorance; establish and improve the law for educating the common people. Let our countrymen know that the people alone can protect us against those evils and that the tax that will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests, and nobles who will rise up among us if we leave the people in ignorance.” To George Wythe, August 13, 1786.
Jefferson never ceased working for the goal of education, knowledge, and the pursuit of truth. His final public achievement was the creation of the University of Virginia. “[It] will be based upon the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate error so long as reason is left free to combat it.” To William Roscoe, December 27, 1820.
The most famous of the “revisions” is Jefferson’s Bill For Establishing Religious Freedom, the language of which virtually defines current First Amendment doctrine. “The opinions of men are not the object of civil government, nor under its jurisdiction. ...To restrain the profession or propagation of principles on supposition of their ill-tendency is a dangerous fallacy, which at once destroys all religious liberty. ...Truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argumentation and debate. ...All men are free to profess, and by argument to maintain, their opinions in matters of religion.” A Bill For Establishing Religious Freedom, 1779. In recognition of the critical distinction between law arising from legislative act and fundamental law derived through the authority of the people through the constitutional process, Jefferson sought to avoid legislative weakness with a pronouncement based on natural law intended to transcend the legality of the Act itself. “The rights hereby asserted are the Natural Rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operations, such act will be an infringement of natural right.” Id.
Immersed within a society slowly becoming aroused by the glimmer of liberty and inspired by his Declaration Of Independence, Jefferson learned of the passage of the Bill while in France in 1786. “The Virginia Act for Religious Freedom has been received with infinite approbation in Europe and propagated with enthusiasm. ...It has been translated into French and Italian, has been sent to most of the courts of Europe. ...It is comforting to see the standard of reason at length erected, after so many ages during which the human mind has been held in vassalage...and it is honorable for us to have produced the first legislature who had the courage to declare that the reason of man may be trusted with the formations of his own opinions.” To James Madison, December 16, 1786.
C. THE CONSTITUTION AND THE BILL OF RIGHTS; 1786-1789
“It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest and ourselves united.” Notes On Virginia, XVII
While in France, between 1783 and 1789, Jefferson naturally monitored closely the political situation in the United States. Most nationalist leaders, including Jefferson, had been long convinced that the Articles Of Confederation could not sufficiently serve as a governmental system. The failures of the confederation system inspired those who favored a powerful centralized government under a monarch and aristocratic elite. The excesses of the period lent credibility to such sentiment. Jefferson, whose first-hand experience with European monarchy served to confirm his deepest prejudices, was alarmed. “Above all things I am astonished at some people’s considering a kingly government as a refuge. . . . Send them to Europe to see some of the trappings of monarchy, and I undertake that every man shall go back thoroughly cured.” To Ben Hawkins, August 4, 1787. Even after adoption of the Constitution murmurings of monarchy continued to reach Jefferson in France. “There are some among us who would now establish a monarchy. But they are inconsiderable in number and weight of character. The rising race are all Republicans. We were educated in royalism; no wonder if some of us retain that idolatry still. Our young people are educated in republicanism. An apostasy from that to royalism is unprecedented and impossible.” To James Madison, March 15, 1789.
Incidents of unrest and rebellion, particularly Shays revolt, frightened many Americans, who foresaw anarchy and civil war. Jefferson attempted to convey a sense of perspective: it was not for order or control that the Revolution was fought. “I prefer freedom with danger to slavery with ease.” To James Madison, January 1, 1787. “The people are the only censors of their government: and even their errors will tend to keep these to the true principles of their institutions. To punish these errors too severely would be to suppress the only safeguard of the public liberty.” To Edward Carrington, January 16, 1787. Later that year Jefferson amplified upon that principle with one of his most celebrated statements. “[If the people] remain quiet under such misconceptions it is a lethargy, a forerunner of death to the public liberty. ...What country can preserve its liberty if its leaders are not warned from time to time, that this people preserve the spirit of resistance? ...What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” To Colonel Smith, November 13, 1787.
In the letter to Carrington, Jefferson touched upon a favorite political and social tactic which he employed to great effect in the struggle for the principles of government in the 1790’s: public information and the newspapers. “The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro’ the channels of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of the government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter.” To Edward Carrington, January 16, 1787. Education of the people as the principal means of preserving liberty and peace, within a governmental system based upon the authority of the people themselves, was a foundation of Jefferson’s political philosophy. “And say, finally, whether peace is best preserved, by giving energy to the government, or information to the people. The last is the most certain, and the most legitimate engine of government. Educate and inform the whole mass of the people. Enable them to see that it is in their interest to preserve peace and order, and they will preserve them. And it requires no very high degree of education to convince them of this. They are the only sure reliance for the preservation of our liberty.” To Madison, December 20, 1787.
The movement in the United States toward a constitutional convention was observed with great interest by Jefferson. Once again he found himself far removed from the scene of action
at a critical moment. He probed his contacts for information and sought to influence the course of events from beyond the ocean.
One theme that Jefferson invariably pursued was the necessity for a total separation of powers and an effective system of checks and balances. In 1786 he wrote Madison that, despite the failure of the Annapolis Convention: “If it should produce a full meeting in May and a broader reformation, it will still be well. But to enable the federal head to exercise the power given it to best advantage, it should be organized...into legislative, executive, and judiciary. The 1st and last are already separated, the second should also be.” To Madison, December 16, 1786. Jefferson continued to stress separation of powers into the next year. “The idea of separating the executive business of the confederacy from Congress, as the judiciary is already in some degree, is just and necessary.” To Madison, June 20, 1787. “I think it is very material, to separate, in the hands of Congress, the executive and legislative powers. ...The want of it has been the source of more evil than from any other cause.” To Carrington, August 4, 1787. The conventional fear at that time was of legislative tyranny, not executive. Jefferson expressed this view while also taking a perceptive look into the future. “The executive in our government is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislature is the most formidable dread at present, and will be for long years. That of the executive will come in its turn, but it will be at a remote period.” To Madison, March 15, 1789.
Madison had communicated his plan to grant the federal government power to strike down state legislative acts, which was not adopted by the Convention. “Prima facie, I do not like it. ...This proposes to mend a small hole by covering the whole garment. Not more than one out of every hundred state acts concern the confederacy.” To Madison, June 20, 1787. Jefferson proposed a judicial alternative, which indeed was the course independently chosen by the Convention. “Would not an appeal from the state judicature, to a federal court in all cases where the act of confederation controlled the question, be as effectual a remedy, and exactly commensurate to the defect?” Id.
The Constitution as adopted came as a result of months of intense and protracted debate, with every point argued and thrashed over, and with few government precepts emerging pure from proposal to adoption. Compromise and accommodation were the touch-stones. Diverging principles were hammered daily into conformity by the process itself; sacred positions were worn away after months of resistance; intractable beliefs were transformed after hundreds of sessions of formal debate, private discourse, and solitary reflection.
Thus Jefferson had to, along with the American public, go through a period of accommodation to many of the elements of the government proposed. He grasped at once, however, the features of the Constitution he could not sanction, and this judgment remained firm through the period when other concerns abated. “I am captivated by the claims of the great and little states. ...I like the negative given to the executive, conjointly with a third of either house; though I should have liked it better had the judiciary been associated for that purpose, or invested separately with a similar power. I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restrictions of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land. ...To say...that a bill of rights was not necessary, because all is reserved in the case of the general government which is not given...is surely a gratis dictum, the reverse of which might just as well be said; and it is opposed by strong inferences from the body of the instrument as well as from the omission of the clause of our present Confederation, which has made the reservation in express terms. 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.” To Madison, December 20, 1787. Careful not to be counted among the opponents to the Constitution, Jefferson added: “[If the majority] approve the proposed Constitution in all its parts, I shall concur in it cheerfully, in hopes they will amend it, whenever they shall find it works wrong.”
Jefferson’s major concern beyond the bill of rights was the continual re-eligibility of the president for re-election. “There is a great deal of good in it. There are two things, however, which I dislike strongly. 1. the want of a declaration of rights. I am in hopes the opposition of Virginia will remedy this, and produce such a declaration. 2. the perpetual re-eligibility of the president. This I fear will make an office for life first, and then hereditary. I was much an enemy to monarchy before I came to Europe. I am ten thousand times more so since I have seen what they are. The good sense and free spirit of our countrymen will make the changes necessary to prevent it. Under this hope I look forward to the general adoption of the new Constitution with anxiety, as necessary for our present circumstances.” To George Washington, May 2, 1788. It is interesting to observe in the above letter the condensation of Jefferson’s objections from numerous specific rights to two general concerns, the blunt forthrightness in addressing the issue of presidential re-eligibility to the man universally expected to fill the office, and the closing statement of support for the Constitution. Jefferson continued to concentrate on influencing Madison and Washington, a political calculation resting upon their unique positions and abilities.
Jefferson was at first supportive of a plan which would have a bare majority of the states ratify the Constitution, the remainder withholding assent until a bill of rights was included. “I wish with all my soul, that the nine first conventions may accept the new Constitution, because this will secure to us the good it contains, which I think great and important. But I equally wish that the four latest conventions, whichever they may be, may refuse to accede to it, till a declaration of rights be annexed. This would probably command the offer of such a declaration, and thus give to the one whole fabric, perhaps, as much perfection as any one of that kind every had.” To A. Donald, February 7, 1788. The overarching commitment to national union, however, remained foremost. “We must take care that neither this [executive re-eligibility], nor any other objection to the new form, produces a schism in our union. That would be an incurable evil.” Jefferson abandoned support for the plan of contingent rejection when he learned of the strategy taken in Massachusetts of adoption with a recommendation for a bill of rights. “The plan of Mass. preferable and will, I hope, be followed by those who are yet to decide.” To Carrington, May 27, 1788.
Slowly, Jefferson’s reluctant accommodation transformed into solid support. “I learned with great pleasure the progress of the new Constitution. Indeed I have presumed it would gain on the public mind, as I confess it has on my own. At first, though I saw that the great mass and the groundwork was good, I dislike many appendages. Reflection and discussion have cleared off most of that.” Id. The brilliant logic of the Federalist also had an impact on Jefferson. “[The Federalist is] in my opinion, the best commentary on the principles of government, which ever was written. ...In general, it establishes firmly the place of government. I confess, it has rectified me on several points.” To Madison, November 18, 1788. Presidential re-eligibility remained disturbing, however, as in contrast to the ground-swell of support for a bill of rights, opposition to this provision was weak. “The natural progress of things is for liberty to yield and government to gain ground. As yet our spirits are free. Our jealousy is only put to sleep by the unlimited confidence we all repose in the person to whom we all look as our President. After him inferior characters may perhaps succeed, and awake us to the danger which his merit has led us into.” To Carrington, May 27, 1788. By the following year, however, Jefferson’s view had taken an interesting turn. “[Re-eligibility should] remain uncorrected, as long as we can avail ourselves of the services of our great leader, whose talents and whose weight of character I consider as peculiarly necessary to get the government so under way as that it may afterwards be carried on by subordinate characters.” To David Humphreys, March 18, 1789.
To a European acquaintance Jefferson reiterated his patient philosophic approach toward reaching perfection of governmental institutions. “We must be contented to travel on towards perfection, step by step. We must be contented with the ground which this Constitution will gain for us, and hope that a favorable moment will come for correcting what is amiss in it.” To Count Moustier, May 17, 1788. Yet increasingly Jefferson was willing to trumpet the import of America’s achievement. “The example we have given to the world is single, that of changing our form of government under the authority of reason only, without bloodshed.” To M. Izard, July 17, 1788. “The example of changing a constitution by assembling the wise men of a state instead of assembling armies will be worth as much to the world as the former examples we have given them. The Constitution...is unquestionably the wisest yet ever presented to men.” To Humphreys, March 18, 1789. The ratification was a moment of undisguised satisfaction. “I sincerely rejoice at the acceptance of our new Constitution by nine states. It is a good canvass, on which some strokes only want retouching.” To Madison, July 31, 1788. “I have seen with infinite pleasure our new Constitution accepted by eleven states. ...I am in hopes that the annexation of the bill of rights to the Constitution will alone draw over so great a proportion of the minorities, as to leave little danger in the opposition of the residue.” To Washington, December 4, 1788. Jefferson’s letter to Washington cleverly spoke of the bill of rights as a fait accompli, which events showed it was not, despite the recommendations of the several conventions. Also clever was the seducing attraction of greater unity and the disappearance of dissent. To Washington, the great unifier, such implantations were not misdirected.
At this point, however, with a bill of rights a mere recommendation in need of effectuation, the momentous energies of Madison were of greater importance than ever. The man who drove Jefferson’s legislative program through the Virginia Assembly and who played a leading active role at the Constitutional Convention was needed to effect adoption of the Bill Of Rights, to embody critical protections of individual liberty into substantive constitutional law which, like the Magna Carta, would endure through the centuries.
Jefferson and Madison continued regular correspondence, touching upon the major concerns of government and politics, and continue to focus on the debate over the Bill Of Rights. Particularly important is Jefferson’s letter of March 15, 1789. “Your thoughts on the subject of the declaration of rights in the letter of October 17 I have weighed with great satisfaction. ...In the arguments in favor of a declaration of rights you omit one which has great weight with me, the legal check which it puts in the hands of the judiciary. This is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity. ...The declaration of rights is, like all other human blessings, alloyed with some inconveniences, and not accomplishing fully its object. But the good in this instance, vastly overweighs the evil. I cannot refrain from making short answers to the objections which your letter states to have been raised. 1. That the rights in question are reserved by the manner in which the federal powers are granted. . . . In a constitutive act which leaves some precious articles unnoticed, and raised implications against others, a declaration of rights becomes necessary. ...This instrument forms us into one state, as to certain objects, and gives us a legislative and executive body for these objects. It should, therefore, guard us against their abuses of power, within the field submitted to them. 2. A positive declaration of some essential rights could not be obtained in the requisite latitude. ...If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government, and jealousy of the subordinate governments, afford a security which exists in no other instance. ...The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them, whereon to found their opposition. The declaration of rights will be the text, whereby they will try all the acts of the federal government. 4. Experience proves the inefficacy of a bill of rights. True. But though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. “There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights and those which attend the want of it. The inconveniences of a declaration are, that it may cramp government in its useful exertions. But the evil of this sort is short-lived, moderate, and reparable. The inconvenience of a want of a declaration are permanent, afflicting, and irreparable. . . . I am much pleased with the prospect that a declaration of rights will be added; and I hope it will be done in that way, which will not endanger that whole frame of government, nor any essential part of it.” To Madison, March 15, 1789. Madison ultimately took upon the task of introducing the Bill Of Rights into Congress, over substantial opposition, and guiding the amendments to passage.1
Thus the great objection to the Constitution which Jefferson immediately seized upon, the lack of a declaration of rights, was remedied. Even more, the specific rights such a declaration must protect were instantly comprehended and proclaimed: freedom of speech, freedom of religion, trial by jury, habeas corpus, and freedom from unlawful searches and seizures.
1Throughout this period Jefferson became increasingly more involved in the early stages of the revolution in France. Jefferson’s unchallenged stature as a champion of the rights of the people encouraged those similarly minded to take him into confidence. Jefferson attempted to maintain a low profile, counseling and advising in private. At one critical moment, however, a sizeable group of the leading revolutionaries gathered for a strategy dinner at Jefferson’s house. This fact became immediately known to the French Ministry, which encouraged the act due to Jefferson’s voice of moderation. While excluded by circumstances from the intimate counsels of his own nation, Jefferson was able to apply the identical political constructs he was wrestling with relative to America. With the vicarious thrill of declaring for France what he dreamed of declaring for America, Jefferson actually drafted a Declaration of Rights for France. This Proposed Charter For France contained provisions for an elected legislature which alone might promulgate law and lay taxes; guaranties of due process, habeas corpus, freedom of the press, subordination of the military to the civilian authority, and the abolition of monetary privileges and exemptions. On June 3, 1789, Jefferson provided a copy to St. Etienne and LaFayette, and sent a copy to Washington. LaFayette introduced a declaration of rights to the National Assembly on July 11, 1789. The potential for beneficial results from such a declaration existed, yet events soon passed beyond the efficacy of a constitutional monarchy. Even so, the event is a fascinating footnote in the constitutional career of Thomas Jefferson, and certainly underscores the determination he possessed to establish these rights in America.
“These are the rights which it is useless to surrender to government, and yet which governments have always been fond to invade. These are the rights of thinking, and publishing our thoughts by speaking or writing; ...The rights of personal freedom.” To Humphreys, March 18, 1789. “[Trial by jury is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” To Thomas Paine, July 11, 1789.
Other of Jefferson’s major objections were also incorporated into American constitutional law. Re-eligibility of the president was rectified by voluntary precedent set by Washington and Jefferson himself. That precedent remained sacrosanct for a century and a half, and once overstepped was codified by constitutional amendment. The judicial veto over federal legislation also became enshrined in American constitutional law, a limited power of judicial review established by Marshall, ironically over the later resistance of Jefferson. The call for judicial guardianship of individual rights, the judicial check taking off from the Bill Of Rights, has become foundational in American constitutional law.
The powerful influence of Jefferson in effecting these changes may be seen, therefore, on the strictly practical plane. It is perhaps idle to assert how every development in American constitutional history has been spiritually guided and even driven by the message of the Declaration Of Independence and by the very existence of the spirit which had created it. It was the spirit of Jefferson which reflected the rising race of Republicanism, a race nourished by the Declaration and now sheltered by the United States Constitution and the Bill of Rights.
D. ESTABLISHMENT OF REPUBLICAN GOVERNMENT; 1789-1801
“I am not a Federalist, because I never submitted the whole system of my opinion to the creed of any party of men whatsoever, in religion, in philosophy, in politics, or in anything else, where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to heaven but with a party, I would not go there at all.” To Francis Hopkinson, March 13, 1789. “In every free and deliberating society, there must, from the nature of man, be opposite parties, and violent dissensions and discords.” To John Taylor, June 1, 1798.
Jefferson arrived in America late in 1789, detached from the political current of his countrymen by an absence of five years, and found himself nominated Secretary Of State by Washington. Sublimating his intense desire to return to France, Jefferson accepted the post, partly from considerations of duty to the desires of the President and partly from personal gratification at being appointed to so important a post at a critical moment of history.
Jefferson became quickly astonished at the conservative reaction which had swept through the ruling elite in America. Social conversation was dominated by the virtues of aristocratic and monarchical government; republican principles seemed oddly absent. Hamilton, at the head of a powerful federalist party, was in the process of stretching governmental power to the very limits of colorable constitutional authority; it was supposed that those limits were seen as merely a temporary annoyance. Only the unquestioned commitment of Washington to the strict forms of the Constitution prevented open and blatant attempts upon the system itself. “A short review of the facts. . .will show, that the contests of that day were contests of principle, between the advocates of republicanism, and those of kingly government, and that had not the former made the efforts they did, our governments would have been...a very different thing from what the successful issue of those efforts have made it.” Anas, note February 4, 1818.
What opposition existed to the Federalists naturally gathered around Jefferson, as he gradually and reluctantly became the head of the opposition Republican Party. Yet to Jefferson it often seemed a solitary and doomed exercise, and even moreso after Madison retired to Virginia in 1793. “...Worn down with labors from morning until night, and day to day; knowing them as fruitless to others as they are vexatious to myself, committed singly and in desperate and eternal contest against a host who are systematically undermining the public liberty and prosperity.” To Madison, June 9, 1793.
One critical factor which was engendering a false sense of Federalist unanimity both within the government and the country at large was the domination of the public newspapers by the Federalist Party. The first important Republican newspaper printed in the Nation’s Capital was founded by Philip Freneau, whom Jefferson employed in the Department of State as a translator and whose publications he at least tacitly encouraged. Freneau’s paper sparked a wave of republican and anti-Federalist propaganda,1 which was strenuously counter-assaulted by the federalist press, including bitter attacks written by Hamilton himself.
To the resigned regret of Jefferson the republican press did not spare personal attacks on Washington. After one particularly scathing indictment, an angry Washington conferenced with Jefferson. “He was evidently sore and warm, and I took his intention to be, that I should interpose in some way with Freneau. ...But I will not do it. His paper has saved our Constitution, which was galloping fast into monarchy. ...It is well and universally known, that it has been that paper which has checked the career of the monocrats.” Anas, May 23, 1793.
Jefferson resigned shortly thereafter, an object he had in view for some time. His influence within the Administration was slight compared to Hamilton’s; he was surrounded by
1A vast network of republican press through the country, which Jefferson actively encouraged, was critical in bringing down the Federalists in 1800.
Federalists and shunned in society; lifelong friends and compatriots were now embittered
enemies. Jefferson fled to Monticello with a psychological relief akin to release from imprisonment.
Democratic Societies began to form throughout the Country and became, along with the republican press, the focal point for political opposition. Threatened, the Federalists, including Washington, attacked them as unlawful. “The denunciation of the democratic societies is one of the extraordinary acts of boldness. ...It is an attack on the freedom of discussion, the freedom of writing, printing, and publishing. ...[Virginians] view the abstract attempt on their natural and constitutional rights in all its nakedness. I have never heard, or heard of, a single expression or opinion, which did not condemn it as an inexcusable aggression.” To Madison, December 28, 1794. It took Jefferson a long time to recover his energies for politics after his experience in New York. Slowly his energy and faith in the vindication of republicanism were regained, and his customary flow of letters, espousing republican virtue and fanning the flame of opposition, resumed. “In place of that noble love of liberty and republican government which carried us triumphantly through the war, an Anglican Monarchical Aristocratical party has sprung up. ...The main body of our citizens, however, remain true to their republican principles. ...Against us are the executive, the judiciary,1 two out of three branches of the legislature.2 ...In short, we are likely to preserve the liberty we have obtained only by unremitting labors and perils. ...We have only to awake and snap the Lilliputian cords with which they have been entangling us during the first sleep which succeeded our labors.” CITE
1The Federal Judiciary, all Federalists, were active participants in the sedition trials and imprisonments.
2The “third” branch was apparently the system of state legislatures, an indication of how entwined Jefferson viewed the states’ authority and the federal government. The state legislatures were the one “branch” in support of republicanism, explaining Jefferson’s approach in the Kentucky Resolutions.
True to his words, Jefferson envisioned himself awakening from a slumber, from a cave of hibernation into which he had been driven. He fell three votes short of election for the Presidency in 1796, and journeyed to New York to assume the post of Vice-President, brimming with political energy. That the Country held him in such high esteem, despite the virulent character assassinations conducted upon him by the Federalists and the total lack of active campaigning for the presidency, surely restored and even supplemented his faith in and commitment to the republican principles he had lived for. Instantly shut out of any influence with the Adams Administration, he quietly assumed his position as titular head of the Republican Party, determined to wrest power from the Federalists in the next election. Yet the infant “republic” would have to ride through severe storms before Jefferson’s “Argossy” would sail into a peaceful port. “We shall never give up our Union, the last anchor of our hope, and that alone which is to prevent this heavenly country from becoming an arena of gladiators.” To Elbridge Gerry, May 13, 1797.
Thus Jefferson maintained his faith in the American Union as he sat placidly presiding over the deliberations of the United States Senate, dominated by political enemies who despised him. The two critical crises of the Adams years were the war hysteria concerning France and the Alien and Sedition Acts with their resulting political persecutions and abridgements of constitutional liberty. The war hysteria deliberately and cynically flamed by certain factions of the Federalist Party and the visions of international conquest and political/military dominations of Alexander Hamilton are best discussed in other contexts, except to note that the entire flow of events portended a fundamental constitutional crisis which might well have never been recovered from. The frustration of these designs is not attributable to Jefferson and the Republican opposition but to the vagaries of fortune and the statesmanship of John Adams. Jefferson did, however, desperately oppose the plans for war with France, however ineffectively.
“A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people recovering their true sight, restoring their government to its true principles.” To John Taylor, June 1, 1798.
Yet the reign of witches did not pass quickly. In July, 1798, the Federalists introduced into Congress the Alien and Sedition Acts, frustrated in their attempts to stem the ever-gaining Republican opposition. These Acts were desperate measures to silence political dissent. Jefferson was obliged to preside over Senate proceedings directed toward blatantly destroying the public liberty; in fact the measures as adopted were far milder than many that were proposed and debated.
Jefferson thereafter returned to Virginia to counterstrike. It was a constitutional crisis of high magnitude, and he clearly perceived that it would be insufficient to patiently watch the “reign of witches pass over and their spells dissolve.” “[What are] now recollected but as dreams of the night, were then sad realities; and nothing rescued us from the liberticide effect, but the unyielding opposition of those firm spirits who sternly maintained their post in defiance of terror, until their fellow citizens could be aroused to their own danger and rally and rescue the standard of the Constitution.” Anas, Note, February 4, 1818. The Federalists had evinced a clear intention to begin arresting and jailing political dissenters and expelling immigrants for political views. If such intent were to be effectuated, resulting in either wholesale arrests or the effective stifling of opposition to the government, little would remain of the ideals of the Revolution or of the sacred rights of man; civil liberty would be effectively extinguished in America and the radical experiment of republicanism and democracy would be destroyed in its infancy. To a committed republican it would be worth civil war to frustrate these designs. Jefferson’s initial strategy, however, was a reasoned, principled constitutional response, mapped out with Madison. Madison authored the Virginia Resolutions, Jefferson the Kentucky Resolutions. “That the several states composing the United States of America, are not united on the principle of unlimited submission to their general government. ...Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Kentucky Resolutions, November, 1798.
The above pronouncement is analogously identical to that of Marshall in Marbury.1
“That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers.” Id. Again, analogously identical to Marshall’s discussion on the limits of Congressional powers, as well as the following: “[It] is not law, but is altogether void, and of no force.” Id. While it might be maintained that there can be no valid analogy drawn between state constitutional review, or state nullification, and federal judicial review of an act passed by a coordinate branch of the same government, it is clear that 1.) any so-called law passed by a legislature beyond its constitutional authority is void, just as maintained in Marbury, regardless of who pronounces it so, or even, theoretically, where no one pronounces it as illegal; and 2.) in the absence of an effective exercise of judicial review, as in 1798, only the authority of the States -- or the people themselves, as represented by the States -- might be raised against unconstitutional federal actions.
Twenty-two years after drafting the Declaration of Independence Jefferson was still passionately proclaiming the sacred liberties of the citizen and decrying the abuses and over-reaching of general government. “It is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;’ and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor
prohibited by it to the States, all lawful powers respecting the same did of right remain, and
1Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803).
were reserved to the states or to the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than these be destroyed.
[This Commonwealth] considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly to the peace, happiness, and prosperity of all the states. ...To take from the states all the powers of self-government and transfer them to a general and consolidated government...is not for the peace, happiness, and prosperity of the states; This Commonwealth is determined...to submit to undelegated, and consequently unlimited powers in no man or body of men on earth. When powers are assumed which have not been delegated, a nullification of the act is the rightful remedy;...Without this right [states] would be under the domination, absolute and unlimited, of whosoever might exercise this right for them. ...The barrier of the Constitution thus swept away, no rampart thus remains against the passions and the powers of a majority in Congress. The friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has clearly followed, for already has a sedition act marked him as its prey: that these acts and successive acts of the same character, unless arrested at the threshold necessarily drive these states into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that men cannot be governed but by a rod of iron. Free government is founded in jealousy and not in confidence. ...[The Legislature] have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. 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. ...[The States] will concur with this Commonwealth in considering the said acts so palpably against the Constitution...that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-states, re-curring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the general government not plainly or intentionally authorized by the Constitution, shall be exercised within the irrespective territories.” Id.
America having ridden through the storm of the sedition crisis, the result appears an inevitability and the Jefferson rhetoric perhaps overstated if not dangerous. Yet when one maintains an historical perspective, reviews the procession of totalitarian regimes of torture and repression from the distant past unto this very day, and takes realistic stock of the unique and unprecedented freedoms Americans exercise in their political and social existence, perhaps a contrasting vision is conjured.
Jefferson’s somewhat desperate recourse to the authority of the states -- desperate because he could not fail to realize the logical fallacies and inherent ultimate political polarization which must result from such state authority (despite the absolute necessity of some power existing to maintain the federal authority within its constitutional limits) -- blazed a beacon light which those with vision could not fail to perceive illuminating the lack of a constitutional arbiter. Marshall assumed the mantle for the federal courts, and history has proven that course to have been the best available. Yet neither the judiciary nor the states could have been then a wholly satisfactory choice: the judiciary because it presupposes an impartiality to the exercise of the federal powers that maintain it, as well as a lack of party spirit, two conditions which certainly did not exist in the 1790’s; the States because nullification must ultimately end in civil war.
The very strength of the two increasingly-competing governmental systems, the Federal and the State, coupled with the vast civilizational chasm which separated sections of the Nation and which became more marked with time, resulted in an ultimate resort to warfare. It is indeed an attenuated endeavor to trace that almost-pre-destined struggle to Jefferson’s pronouncements in the Kentucky Resolutions, later used for support by nullifiers and secessionists. To Jefferson, of course, the legitimacy of a tragic shattering of the Union would be based upon the principles of liberty for which disunion became a final and unavoidable recourse. The rights of freedom of conscience and of speech, of a government which derived its authority from the people and thus could not, by any implication, be involved in their violent repression, would surely justify civil war and conceivably any amount of bloodshed. It is obviously another question as to whether Jefferson would have sanctioned the same for the right to possess slaves and an asserted independence based upon economic, cultural, and political paranoia.
It may be viewed, in any event, that the seeds planted by Jefferson upholding the sphere of State political authority ultimately reached fruition in the Civil War, wherein they were effectually extinguished and the National Power was monumentalized as standing supreme and unchecked. Yet the irony is that this very national power was so greatly imbued with Jeffersonian convictions of governmental principles! The Fourteenth Amendment, a true revolution of government forever changing the relationship between the Federal Government and the States, embodied critical principles Jefferson long advocated: equality and due process of law for all citizens. Due Process is itself certainly an enshrinement of fundamental and traditional legal processes and protections and, historically as well as arguably, of the fundamental Natural Rights of Man.
Thus, within the very destruction of the State authority Jefferson insisted must sheild American citizens from arbitrary federal power (for Jefferson did not uphold State authority for its own sake but as the vital means of preserving republican government and individual liberty), were embodied these same protections, now from arbitrary State as well as Federal action, to be enforced by the Federal Government under the Fourteenth Amendment. Where that relatively unchecked Federal power will ultimately lead remains for future ages to witness, yet to this point certainly the individual rights of the citizens have been admirably, even fanatically, albeit inconsistently, shielded from governmental abuse.
The Federalists became increasingly disunited as the Election of 1800 approached. Concomitantly Federalist attacks on Jefferson grew ever-more slanderous. Yet by 1800 there was a sense that the worst of the dangers had passed. “That a part of the Union having held on to the principles of the Constitution, time has been given to the states to recover from the temporary frenzy into which they have been decoyed, to rally round the Constitution, and to rescue it from the destruction with which it had been threatened even at their own hands.” To G. Granger, August 13, 1800. Federalist attacks on Jefferson’s character and political principles were effective, however, and led to requests even from republican adherents for Jefferson to clarify his positions. “I do then, with sincere zeal, wish an inviolable preservation of the present Federal Constitution, according to the true sense which it was adopted by the states. ...I am opposed to a first transition to a President and Senate for life, and from that to an hereditary tenure of these offices. ...I am for preserving to the States the powers not yielded by them to the Union. ...I am for freedom of religion...for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust of our citizens.” To Elbridge Gerry, January 26, 1799.
Jefferson had also been pressed to declare for the public his personal views upon religion and to soften his unyielding insistence on a total and effectual separation of Church and State. His personal religious beliefs Jefferson considered beyond the scope of public inquiry. Regarding the separation of Church and State, Jefferson wrote in 1800: “The genus irritable vatum [irritable tribe of priests] are all in arms against me. Their hostility is on too interesting ground to be softened. ...The returning good sense of our Country threatens abortion to their hopes, and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly: for I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” To Benjamin Rush, September 23, 1800.
“I feel a sincere desire to see our Government brought back to its Republican Principles, and to see that kind of government firmly fixed, to which my whole life has been devoted.” To Marie Jefferson Eppes, February 15, 1801.
Jefferson’s victory in 1801 was substantially the climax of a lifetime struggle for the political rights of Mankind. It assured a fair trial for Republican Government and allowed for the solid establishment of the fundamental principles of liberty into the very fabric of American Government, Law, and Society. “The storm through which we have passed, has been tremendous indeed. The tough sides of our Argossy have been thoroughly tried. Her strength has stood the waves into which she was steered, with a view to sink her. We shall put her upon her Republican tack, and she will now show by the beauty of her motion the skill of her builders. ...I hope to see shortly a perfect consolidation to effect which nothing shall be spared on my part, short of the abandonment of the principles of the Revolution. A just and solid republican government maintained here, will be a standing monument and example for the aim and imitation of other countries.” To John Dickinson, March 6, 1801.
He who first gave compelling voice to the Principles of the Revolution, perceiving amidst the blinding sway of pride and self-interest the visions that truly beckoned, remained the speaker for its principles long since they had enjoyed the unquestioned eminence of fashion and had, for the majority of the ruling class, become a burden if not an embarrassment. Riding the waves of the dark storm, with an implicit faith logic alone could not sustain, Jefferson emerged in triumph. And yet, wholly consistent with his impassioned creed of Republicanism, Democracy, and the Sacred Pursuit of Truth, his victory was not at core seen by him as one for Jefferson the man, but for the Republican Principles of the Revolution.
“It is proper that you should understand what I deem the essential principles of our government. ...Equal and exact justice to all men, of whatever state or persuasion, religious or political; ...Freedom of religion, freedom of the press, freedom of person under the protection of habeas corpus; and trial by juries impartially selected -- these principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They shall be the creed of our political faith.” First Inaugural Address,
March 4, 1801.
NOTE ON SOURCES
Jefferson’s political writings were extracted from The Papers Of Thomas Jefferson, Boyd, J. ed.; V.I: 1760-1776; Princeton, N.J., 1950; The Life And Selected Writings Of Thomas Jefferson, Koch & Peden, ed.; N.Y. 1944; Basic Writings Of Thomas Jefferson, Phoner, ed.; N.Y., 1944.