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
WILLIAM MASELLI
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 worldÕs 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 ConstitutionÕs detractors: ÒIs 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.Ó1
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. ÒWhere 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.Ó2 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 Òimplication might swallow all our rights.Ó3
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, ÒUnited we are strong, divided we
fall.Ó4 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 WashingtonÕs 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 AmericaÕs 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 nationÕs 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 NationÕs 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 ÒAmerican EmpireÓ 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, itÕs 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 ÒJudicial Power shall be vested,Ó 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 refereeÕs
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 Òunquestioned history of the day.Ó 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 ÒequalityÓ and Òjustice,Ó 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 individualÕs 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 ÒdemocraciesÓ (eg. Athens) and fluctuating ÒrepublicsÓ
(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 stateÕs 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 Ònation assembled the wise men of the state
instead of assembling armies,Ó 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 ConstitutionÕs 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 ÒinevitableÓ 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 ConstitutionÕs 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 Òto free us from
itself,Ó 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 philosopherÕs effort
to prove that truth is absolute and of the juristÕs 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 ÔnourishesÕ 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
defend it.
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 worldÕs 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 Ôpale cast of
thought.Õ 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 naziÕs and their death camps. ManÕs technology
rapidly increases; the magnitude of impacts grows seemingly geometrically. By
the 1940Õs 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 RaceÕs 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 Ôjourney of a thousand miles begins with a single step.Õ
The Unvanquishable Radiance
JacksonÕs 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 Ôbeneath
which a human may not descend,Õ 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 Òhigher truths?Ó 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 BeethovenÕs
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.
THOMAS JEFFERSON:
HIS INFLUENCE UPON THE ESTABLISHMENT OF THE FUNDAMENTAL
PRINCIPLES OF AMERICAN CONSTITUTIONAL LAW
TABLE OF CONTENTS
INTRODUCTION
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
a.) self-legislation
b.) consent of the governed
3. Republicanism
4. Education
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
C. CONCLUSION
II. CHRONOLOGY
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
INTRODUCTION
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 NationÕs
psyche, such as the 1776 proposals for freedom of religion and press,
JeffersonÕs influence on AmericaÕs 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 JeffersonÕs 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 JeffersonÕs ideals
upon the American political landscape.
The work is divided into two sections. The first is a brief overview of
JeffersonÕs 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 JeffersonÕs
major contributions to constitutional principles was consummated. The purpose
of the chronology is to view in perspective the evolution of JeffersonÕs
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
JeffersonÕs 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 JeffersonÕs 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 JeffersonÕs 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 JeffersonÕs essential principles on personal liberty.
For example, First Amendment doctrine has currently reached a point of harmony
with JeffersonÕs pronouncements two hundred years earlier.
1 See Marshall, C.J., in his Life of Washington, V.II, p. 166.
The most powerful impact of JeffersonÕs 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 JeffersonÕs natural law; that the potential of Due
Process is limited only by the NationÕs 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 JeffersonÕs
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
JeffersonÕs 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, JeffersonÕs 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.
JeffersonÕs 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 MadisonÕs
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.
JeffersonÕs 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, JeffersonÕs
struggle to stem the tide of reaction throughout the 1790Õs and to firmly
establish the Òtrue principlesÓ of the Revolution must be viewed as critical,
and as important on the practical plane as any other of his achievements.
JeffersonÕs 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 Ôaristocracy of virtue and talent.Õ 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 JeffersonÕs essential political and constitutional
principles in view, we can perhaps more clearly grasp, through the following
chronology, JeffersonÕs influence upon the development of American constitutional
law in its most intrinsic elements.
II. CHRONOLOGY
A. THE PRINCIPLES OF REVOLUTION; 1774-1776
ÒThe God who gave us life gave us liberty at the same time: the hand of force
may destroy, but cannot disjoin them.Ó 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 JeffersonÕs 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 JeffersonÕs political creed already
emerging, the sacred rights of nature and the function of government to promote
happiness of its citizens. Ò[The colonistsÕ 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.Ó
Jefferson also asserted the complete lack of Parliamentary authority over the
Colonies. ÒThe 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 MajestyÕs subjects here, can be persuaded that they
hold their political existence at the will of a British Parliament.Ó Inherent
within this denial of parliamentary authority was the principle that
legislative power arises from within the people themselves. ÒFrom the nature of
things, every society must, at all times, possess within itself the sovereign
powers of legislation.Ó
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. ÒHistory 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.Ó Id.
Jefferson also stressed the importance of trial by jury. Ò[A defendant] stripped
of his privilege of trial by peers of his vicinage...is tried before judges
predetermined to condemn.Ó Id.
When Jefferson proclaimed that the Colonists were ÒA free people,
claiming their rights as derived from
the Laws of Nature, and not as the gift of their
chief magistrate,Ó 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 worldÕs history created from the avowed political rights of a nationÕs
people.
JeffersonÕs 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 NorthÕs Conciliatory proposal to the Colonies in 1775 was first officially
answered by the Virginia Assembly with Resolutions drafted by Jefferson. ÒNext
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.Ó VirginiaÕs 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. ÒWe 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.Ó
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 JeffersonÕs draft
and one written by John Dickinson.1 JeffersonÕs 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. ÒBy 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.Ó Declaration Of Causes For Taking Up Arms,
June 1775.
A thread in JeffersonÕs 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. ÒOur 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.Ó Id.
The Declaration Of Causes was JeffersonÕs first great action upon the national
stage, and he threw himself into the task with energy and passion. ÒWe 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.Ó Id.
Jefferson was assigned by Congress to draft the American response to Lord
NorthÕs 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. ÒThey 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
Ôthat he would never treat with America till he had brought her to his feet,Õ
and that an avowed partisan of the ministry has more lately denounced against
us the dreadful sentence Ôdelenda est Carthago,Õ...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.Ó 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. ÒWe 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.Ó 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 AmericaÕs 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. Ò[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.Ó To Roger
Weitman, June 24, 1826.
B. ESSAYS IN PRACTICAL CONSTITUTIONAL
CONSTRUCTION; 1776-1779
ÒShould 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.Ó 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 ÒThe authority of
the People.Ó The body of the constitution began with the proclamation: ÒThe
Legislative, Executive, and Judiciary offices shall be for ever separate.Ó Third
Draft, Jefferson Constitution, June 13, 1776.
The similarities between JeffersonÕs 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 JeffersonÕs 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 VirginiaÕs Constitution and worked toward amending or
re-writing it. ÒThe 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.Ó 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. ÒAll 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.Ó
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 JeffersonÕs substantive
principles of government. JeffersonÕs influence upon Madison may objectively be
seen by comparing JeffersonÕs Virginia constitution of 1776 with the national
constitution proposed by Madison in 1787; by the powerful Jeffersonian logic in
MadisonÕs work in the Federalist; in the major effort of Madison in passing
JeffersonÕs legislative reforms in Virginia, including the heralded Bill For
Religious Freedom; and in MadisonÕs 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 MadisonÕs work in the
Federalist was ÒThe best commentary on the principles of government which ever
was written.Ó
Jefferson also found fault with the Virginia provision which established a
similar selection process for both senators and representatives. ÒThe 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.Ó 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. ÒFor 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.Ó 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: ÒI saw...that the laboring oar was really at home.Ó 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. ÒThe 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.Ó Autobiography.
JeffersonÕs initial attempt to reform the stateÕs religious establishment
Òbrought on the severest contest in which I have ever been engaged.Ó 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. ÒWhen 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.Ó Id. Ultimately Jefferson and Wythe alone Òbrought the whole
body of British statutes and laws of Virginia into 127 acts most of them
short.Ó To Skelton Jones, July 28, 1809. ÒWe 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.Ó 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. ÒI
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.Ó Autobiography..
JeffersonÕs Òbill for a general educationÓ was entitled A Bill For The More
General Diffusion Of Knowledge. ÒExperience 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.Ó A Bill For The More
General Diffusion Of Knowledge, 1779. Jefferson expounded upon his concept
of the aristocracy of virtue and talent. ÒThose 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.Ó The
Bill was only adopted in part and was never truly effective during JeffersonÕs
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. ÒI 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.Ó 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. Ò[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.Ó To William
Roscoe, December 27, 1820.
The most famous of the ÒrevisionsÓ is JeffersonÕs Bill For Establishing
Religious Freedom, the language of which virtually defines current First
Amendment doctrine. ÒThe 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.Ó 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. ÒThe 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.Ó 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. ÒThe 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.Ó To James Madison, December
16, 1786.
C. THE CONSTITUTION AND THE BILL OF RIGHTS; 1786-1789
ÒIt 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.Ó
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. ÒAbove
all things I am astonished at some peopleÕs 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.Ó To Ben Hawkins,
August 4, 1787. Even after adoption of the Constitution murmurings of monarchy
continued to reach Jefferson in France. ÒThere 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.Ó 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. ÒI prefer freedom with danger to slavery with ease.Ó To James Madison,
January 1, 1787. ÒThe 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.Ó To Edward Carrington, January 16, 1787. Later
that year Jefferson amplified upon that principle with one of his most celebrated
statements. Ò[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.Ó 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 1790Õs: public information and the newspapers.
ÒThe way to prevent these irregular interpositions of the people is to give
them full information of their affairs throÕ 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.Ó 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 JeffersonÕs
political philosophy. ÒAnd 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.Ó 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: ÒIf 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.Ó To Madison,
December 16, 1786. Jefferson continued to stress separation of powers into the
next year. ÒThe idea of separating the executive business of the confederacy
from Congress, as the judiciary is already in some degree, is just and
necessary.Ó To Madison, June 20, 1787. ÒI 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.Ó
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. ÒThe 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.Ó 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.
ÒPrima 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.Ó To Madison, June 20, 1787. Jefferson proposed a
judicial alternative, which indeed was the course independently chosen by the
Convention. ÒWould 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?Ó 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. ÒI 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.Ó To Madison, December 20, 1787. Careful not to be counted among the
opponents to the Constitution, Jefferson added: Ò[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.Ó
JeffersonÕs major concern beyond the bill of rights was the continual
re-eligibility of the president for re-election. ÒThere 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.Ó To George Washington, May
2, 1788. It is interesting to observe in the above letter the condensation of
JeffersonÕs 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. ÒI 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.Ó To A. Donald, February 7, 1788.
The overarching commitment to national union, however, remained foremost. ÒWe
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.Ó 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. ÒThe plan of Mass.
preferable and will, I hope, be followed by those who are yet to decide.Ó To
Carrington, May 27, 1788.
Slowly, JeffersonÕs reluctant accommodation transformed into solid support. ÒI
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.Ó Id.
The brilliant logic of the Federalist also had an impact on Jefferson. Ò[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.Ó 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. ÒThe 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.Ó To Carrington, May 27, 1788. By the following year, however, JeffersonÕs
view had taken an interesting turn. Ò[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.Ó To David Humphreys, March 18, 1789.
To a European acquaintance Jefferson reiterated his patient philosophic
approach toward reaching perfection of governmental institutions. ÒWe 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.Ó To Count Moustier,
May 17, 1788. Yet increasingly Jefferson was willing to trumpet the import of
AmericaÕs achievement. ÒThe example we have given to the world is single, that
of changing our form of government under the authority of reason only, without
bloodshed.Ó To M. Izard, July 17, 1788. ÒThe 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.Ó To
Humphreys, March 18, 1789. The ratification was a moment of undisguised
satisfaction. ÒI sincerely rejoice at the acceptance of our new Constitution by
nine states. It is a good canvass, on which some strokes only want retouching.Ó
To Madison, July 31, 1788. ÒI 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.Ó To Washington, December 4, 1788. JeffersonÕs 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 JeffersonÕs 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 JeffersonÕs letter of March 15,
1789. ÒYour 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. ÒThere 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.Ó 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. JeffersonÕs
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 JeffersonÕs house. This fact became immediately known to the
French Ministry, which encouraged the act due to JeffersonÕs 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.
ÒThese 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.Ó To Humphreys, March 18, 1789. Ò[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.Ó To Thomas Paine, July 11, 1789.
Other of JeffersonÕs 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
ÒI 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.Ó To Francis
Hopkinson, March 13, 1789. ÒIn every free and deliberating society, there must,
from the nature of man, be opposite parties, and violent dissensions and
discords.Ó 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. ÒA 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.Ó 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. Ò...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.Ó 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 NationÕs 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. FreneauÕs 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. ÒHe 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.Ó 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 HamiltonÕs; 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.
ÒThe 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.Ó 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. ÒIn 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.Ó CITE
1The Federal Judiciary, all Federalists, were active
participants in the sedition trials and imprisonments.
2The ÒthirdÓ branch was apparently the system of state legislatures,
an indication of how entwined Jefferson viewed the statesÕ authority and the
federal government. The state legislatures were the one ÒbranchÓ in support of
republicanism, explaining JeffersonÕs 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 ÒrepublicÓ would have to ride
through severe storms before JeffersonÕs ÒArgossyÓ would sail into a peaceful
port. ÒWe 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.Ó 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.
ÒA 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.Ó 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 Òreign of witches pass over and their
spells dissolve.Ó Ò[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.Ó 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.
JeffersonÕs initial strategy, however, was a reasoned, principled
constitutional response, mapped out with Madison. Madison authored the Virginia
Resolutions, Jefferson the Kentucky Resolutions. ÒThat 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.Ó Kentucky Resolutions, November,
1798.
The above pronouncement is analogously identical to that of Marshall in Marbury.1
ÒThat 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.Ó Id.
Again, analogously identical to MarshallÕs discussion on the limits of
Congressional powers, as well as the following: Ò[It] is not law, but is
altogether void, and of no force.Ó 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. ÒIt is true as a general
principle, and is also expressly declared by one of the amendments to the
Constitution, that Ôthe 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;Õ 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.Ó 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.
JeffersonÕs 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
1790Õs; 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 JeffersonÕs 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. ÒThat 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.Ó To G. Granger, August 13, 1800. Federalist attacks on
JeffersonÕs character and political principles were effective, however, and led
to requests even from republican adherents for Jefferson to clarify his
positions. ÒI 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.Ó 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: ÒThe 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.Ó To Benjamin Rush,
September 23, 1800.
ÒI 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.Ó To Marie Jefferson Eppes, February 15, 1801.
JeffersonÕs 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. ÒThe 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.Ó 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.
ÒIt 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.Ó
First Inaugural Address,
March 4, 1801.
NOTE ON SOURCES
JeffersonÕs 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.