Thomas Jefferson

.. as a literalist or a strict constructionist, however, is insufficient. Although he was a strict constructionist with regard to most of the powers granted Congress in Article I, section 8, especially where federal powers could pre-empt state law, he could interpret federal powers under the Constitution quite liberally in matters involving foreign affairs, which he regarded as an exclusive responsibility of the national government since the time of the Articles of Confederation. (Hence, in his second term as president, he enforced one of the most draconian laws ever passed by Congress — at least prior to the Civil War — the Embargo, which curtailed virtually all foreign trade in a futile attempt to keep the United States out of the war between Britain and France.) He also could be quite liberal in interpreting power-restraining or rights-guaranteeing provisions of the Constitution, as his interpretation of the First Amendment religion clause demonstrates. Constitutional Scruples Upon becoming president in 1801, Jefferson reiterated his ideal of a federal government limited to its legitimate powers assigned by the Constitution: a government reduced to a few plain duties performed by a few servants. His Inaugural Address declared his general support for the idea of a wise and frugal government, which shall restrain men from injuring one another, [but] which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. More specifically, in his first annual message, in December 1801, he declared that it was his administration’s policy to reduce expenses to what is necessary for the useful purposes of government, and he described those concerns that he considered appropriate for the federal government.

When we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. Jefferson’s administration pursued a policy of economy in government, drastically reducing the size of the federal payroll while simultaneously repealing all internal taxes, including Alexander Hamilton’s hated excise on whiskey. Abolition of internal taxes made possible the elimination of the internal revenue service employed to collect them; this resulted in a significant decrease in the Department of Treasury, by far the largest of the executive departments. Jefferson also recommended reductions in the army, the navy, and the diplomatic corps. In addition to the repeal of internal taxes and drastic reductions in federal expenditures, Jefferson also enthusiastically endorsed the plan prepared by his Secretary of the Treasury, Albert Gallatin, to pay off the entire national debt — some $83 million — within sixteen years by annual appropriations of $7,300,000. Believing it wrong for the present generation to saddle future generations with a huge national debt, Jefferson sought to establish the principle of pay-as-you-go in the federal budget.

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During the eight years of Jefferson’s administration the debt actually was reduced by almost a third; extraordinary expenses not foreseen at the beginning of his presidency — chiefly, the Louisiana Purchase and increased naval costs associated with the Barbary Wars — forced the modification of Gallatin’s plan. Nevertheless, the plan to extinguish the debt was largely successful because of the large increase in revenue from import duties that accompanied the growth in American commerce during this period. Indeed, the increased revenues actually created a surplus later in the administration, prompting Jefferson to recommend a constitutional amendment permitting expenditures for roads and other improvement projects, as noted below. After his retirement from the presidency, Jefferson urged continued effort to pay off the debt by reducing federal expenditures, noting that increased public debt would bring increased taxation and in its train wretchedness and oppression.10 As president, Jefferson thus sought to accomplish the objective he had stated in his First Inaugural Address and reiterated elsewhere in his writings at the start of his presidency: to restore the constitutional equilibrium between the states and federal government by keeping the latter a wise and frugal government limited to its sphere. Later in his presidency, when he recommended that Congress appropriate money for such projects as establishing a national university, construction of roads and canals, and improvements to rivers and harbors, Jefferson called for a constitutional amendment to authorize such expenditure because these projects were not among the enumerated powers of the federal government. Critics of Jefferson, both past and present, have cited the Louisiana Purchase as an example of Jefferson’s failure, as president, to adhere consistently to his doctrine of strict interpretation of federal powers. Rather than showing his hypocrisy, however, the entire episode of the Louisiana Purchase illustrates the seriousness of Jefferson’s constitutional scruples.

Jefferson understood the importance of the Purchase: it secured New Orleans and control of the Mississippi and was therefore vital to the interests of the United States. Although Albert Gallatin presented Jefferson with arguments supporting the constitutionality of the Purchase, Jefferson remained sufficiently troubled to draft a constitutional amendment explicitly making the Louisiana territory part of the United States. No important adviser or supporter of Jefferson apparently urged either the necessity or the practicality of such a constitutional procedure, however. Indeed, Jefferson’s close friend Senator Wilson Cary Nicholas argued strongly against it, saying that a declaration from Jefferson that the treaty exceeded constitutional authority would lead to its rejection by the Senate or at least to the charge of his willful breach of the Constitution. Jefferson’s reply to Nicholas’s letter, stating in particularly striking terms his lingering constitutional scruples, has been one of the most often quoted of Jefferson’s writings on constitutional matters: When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise.

I had rather ask an enlargement of power from the nation where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. Conceding the likelihood that the framers’ enumeration of powers was defective — for this is the ordinary case of all human works — he urged, Let us go on then perfecting it, by adding by way of amendment to the constitution, those powers which time & trial show are still wanting. In the present case, he concluded, it was important .

. . to set an example against broad construction by appealing for new power to the people.11 When Jefferson finally dropped the matter and acquiesced in the Louisiana Purchase despite the lack of a constitutional amendment, he did so not because he had given up strict construction but because he was following his advisers’ recommendation not to press the constitutional problem, realizing that it could jeopardize a treaty so vital to the nation’s security. What is practicable must often control what is pure theory; and the habits of the governed deter mine in a great degree what is practicable, he noted. Jefferson took solace in what he regarded as the good sense of the people, not to permit this one precedent to destroy the whole edifice of enumerated powers upon which constitutional limitations on the federal government rested.

Indeed, a common-sense resolution of his constitutional qualms was suggested by Thomas Paine, who reassured Jefferson that the cession makes no alteration in the Constitution; it only extends the principles over a larger territory, and this certainly is within the morality of the Constitution, and not contrary to, nor beyond, the expression of intention of any of its articles. If a new power had been added by construction to those powers assigned by the Constitution to the federal sphere, it was only the power to add to the domain of what Jefferson aptly called the empire for liberty.12 The fact that, despite these assurances, Jefferson remained troubled about his constitutional scruples — for years after his presidency — only underscores the degree of his scrupulous regard for the chains of the Constitution. Unable to square the acquisition of Louisiana and its incorporation into the Union with his theory of federal powers, Jefferson came to regard it as an extraordinary action of executive prerogative — he, as president, going beyond the strict limits of the law, for the good of the country. Even then, he still hoped for an act of indemnity by the nation, one that will confirm & not weaken the Constitution, by more strongly marking out its lines. The Jeffersonian Presidency With regard to the proper allocation of federal powers, Jefferson took equally seriously the principle of separation of powers.

It is a mistake to try to label Jefferson’s presidency as either strong or weak. Where the Constitution assigned powers exclusively to the president, Jefferson vigorously exercised them; where powers were assigned to or shared with other branches, however, Jefferson both preached and exercised strict restraint. Unlike modern presidents, who assert the power as commander-in-chief to send U.S. armed forces anywhere in the world without the consent of Congress, Jefferson was respectful of Congress’s war power. When U.S.

ships fought against pirates in the Mediterranean, Jefferson — recognizing that the Constitution gave Congress alone the power to declare war — publicly took the position that until Congress authorized offensive measures, the Navy could engage only in defensive actions.13 His position — which modern commentators consider one of the most restrictive interpretations of executive war powers ever uttered by an American president — showed that he wished the decision committing American naval forces to hostilities in the Mediterranean to be not a unilateral one, but one in which Congress shared. Jefferson also held a quite narrow view of the executive power. On one occasion he wrote, I am but a machine erected by the constitution for the performance of certain acts according to the laws of action laid down for me.14 In his view, executive power was limited both by constitutional restraints and by law. As president, Jefferson sought to keep his constitutional distance from the Congress. He could hardly have done otherwise without opening himself to charges of hypocrisy (by his enemies) or charges of backsliding (from his friends), for the Republicans in the 1790s had been sharply critical of what they perceived as Federalist attempts to institute an English monarchical and ministerial system.

Consequently, early in his administration, Jefferson declared that he would abandon all those public forms and ceremonies which tended to familiarize the public idea to the harbingers of another form of government. These included the annual speech to Congress, which to Jefferson was too reminiscent of the king’s opening of Parliament. In sending a written message rather than delivering it in person, he broke with the precedent that George Washington had set and started a tradition that lasted more than a century. Not until Woodrow Wilson did presidents deliver their state of the union addresses in person. The modern spectacle — with both houses of Congress assembled in the House chamber in wait on the president, whose presence is loudly announced and greeted with two separate standing ovations — would have appalled Jefferson.

In at least one area, however, Jefferson was a strong president: in his assertion of his equal power — equal with the other two branches of the federal government, particularly the Supreme Court (dominated at the time by Federalists) — to interpret the Constitution. The constitutional theory that scholars have called Jefferson’s tripartite doctrine was fully developed in Jefferson’s mind by the time of his presidency. He explained his doctrine in a letter written to Abigail Adams in 1804, defending his actions in discontinuing prosecutions and pardoning offenders under the Sedition Act: You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.

The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. The Constitution, he concluded, meant that its co-ordinate branches should be checks on each other. Accordingly, to give the judiciary the right to decide questions of constitutionality not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.15 Jefferson had seemed not at all troubled by the fear of conflicts arising from the departments’ divergent interpretations of the Constitution. In part, this may have been due to the fact that, in Jefferson’s day, for all practical purposes, the legislature and the executive continued to determine for themselves whether or not they were acting within the bounds of the Constitution.

If a truly difficult conflict arose between two or more branches, it could be resolved by the ultimate arbiter of constitutional questions — the people, acting in their elective capacity. By periodically choosing officers for two of the three departments of national government, the people, Jefferson believed, have an opportunity to reintegrate the Constitution, by demonstrating their approval or disapproval of those branches’ interpretation of it.16 Power to the People Though not an advocate of frequent and untried changes in laws and constitutions, Jefferson nevertheless refused to look at constitutions with sanctimonious reverence . . . like the ark of the covenant, too sacred to be touched.17 Accordingly, he favored revisions of laws and constitutions, as the needs arose.

His view was clearly distinct from that of Chief Justice John Marshall, who in his famous opinion in McCulloch v. Maryland argued that the Constitution was intended to endure for ages to come as a rationalization for the expansion of federal powers by judicial interpretation. Jefferson, with his Whig heritage of distrust of law and government, looked to the people rather than to the courts when he thought of adapting the Constitution, or of determining the application of its provisions, to new circumstances. Always suspicious of men in power, Jefferson was particularly reluctant to entrust so important a role as the interpretation of the federal Constitution to any one body of men — especially to a Supreme Court dominated, as it then was, by John Marshall. Hence he preferred that constitutional difficulties remain unresolved, or that the mode of resolving them remain awkward and uncertain, than that mutual jealousies give way to confidence in the government at Washington. In the early 1820s, during the Virginia campaign against the claim that the United States Supreme Court was the ultimate arbiter of constitutional questions, Jefferson again emphasized the role of the people themselves.

As he wrote one correspondent in 1820, I know no safe depository of the ultimate powers of the society but the people them selves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.18 The notion that control by the people over their government, according to their own wholesome discretion, informed by education, constituted the true corrective of abuses of power is distinctively Jeffersonian. Indeed, the emphasis that Jefferson placed on popular participation and control — making the people themselves a vital element in constitutionalism — was the pre-eminent hallmark of Jefferson’s constitutional thought. None of his contemporaries, with the possible exception of John Taylor of Caroline, quite so emphasized this element. It in fact underlay many of the other aspects of his constitutional thought.

Both the pure theory of separation of powers as well as the theory of federalism that Jefferson espoused were ultimately derived from his thoroughgoing republicanism: with each branch of the federal government, and with each state in the Union, determining constitutional questions, potentially in conflict with one another, some common ground was necessary; and that common ground — in effect, the glue that held Jefferson’s constitutional system in place — was in fact the active participation of the people.19 This explains Jefferson’s lifelong emphasis on the importance of education as well as his support for a system of public schools. The purpose for his Bill for the More General Diffusion of Knowledge, as he explained it in Notes on the State of Virginia, was that of rendering the people . . . the ultimate guardians of their own liberty.

Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories. And to render even them safe their minds must be improved to a certain degree. Jefferson’s bill sought to do so by giving all citizens a basic schooling in reading, writing, and history. The emphasis on historical education was quite deliberate, Jefferson explained: History by apprising them of the past will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views.

Beyond this basic schooling, the best students — the natural aristocracy, determined by merit, or genius — would receive advanced training at the institution to which he devoted the final years of his life, the University of Virginia, where he hoped the vestal flame of republicanism would be kept alive. Little Republics In later years Jefferson coupled his support of public education with one other proposal, which he considered equally necessary to the preservation of republicanism: his proposed system of local government by little republics, or wards. His proposal was to divide the counties into wards of such size that every citizen can attend, when called on, and act in person. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing & concentrating all cares and powers into one body. The secret of maintaining freedom, he suggested, was to make the individual alone the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence by a synthetical process, to higher & higher orders of functionaries, so as to trust fewer and fewer powers, in proportion as the trustees become more and more oligarchical.

This system of republics would become a vital element of constitutionalism. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day; when there shall not be a man in the State who will not be a member of some one of its councils, great or small, he will let the heart be torn out of his body sooner than his power be wrestled from him by a Caesar or a Bonaparte, he also observed.20 Jefferson thus envisioned that the active involvement of citizens in the government itself would be the most effective check on the abuse of governmental power. An educated, actively involved citizenry would be both self-reliant — managing directly those affairs to which individuals were alone competent — and vigilant, keeping a close watch over their elected officials to whom they had entrusted all other affairs, and making certain that they did not turn into wolves. Jefferson’s proposed ward system also gives added meaning to his support for the principle of rotation in office, one of whose goals is to increase the level of popular participation in government by mandating turnover. Term limits, as proponents argue today, can break the virtual monopoly that incumbent, professional politicians hold on some offices, and create a way to return to the citizen-politician model of the 19th century. The appeal of term limits to modern-day Jeffersonians is exactly the same as its appeal to Jefferson himself: it enhances the possibility that each citizen may become, in his words, a participator in the government of affairs, not merely at an election one day in the year, but every day.

A full understanding of Jefferson’s ideas regarding constitutional change — and indeed, of his constitutional thought generally — must take into account Jefferson’s dual emphasis on education and participation. The essentially negative view of politics that Jefferson held thus ultimately influenced his constitutional thought in a profound way. Jefferson regarded as truly modest the achievements of his generation, believing that subsequent generations, learning from additional experience, would improve on the founders’ handiwork, with the problem of maintaining a free government becoming far simpler as subsequent generations hit upon better and better solutions. Hence he recommended that every generation create anew their constitutions — a recommendation that reveals both his assumptions that constitution-making was a relatively simple matter and that the people, as a whole, were fully competent to the task. Jefferson’s Legacy Although he was an eminent member of what Dumas Malone has called the great generation, Jefferson disclaimed its greatness. Throughout his life Jefferson deliberately downplayed his public service. For example, in 1800 he drafted a list of his services that emphasized his role in introducing olive trees and upland rice into South Carolina, noting that the greatest service which can be rendered any country is, to add a useful plant to its culture.

Perhaps Jefferson’s greatest political legacy is the extent to which he devalued politics. During nearly half a century of public service, Jefferson held many high political offices: President of the United States, Vice-President of the United States, Secretary of State, U. S. Ambassador to France, Member of Congress, Governor of Virginia. Nevertheless, he asked to be remembered in his epitaph for only three accomplishments: author of the Declaration of Independence, author of the Virginia Statute of Religious Freedom, and father of the University of Virginia.

Liberty and knowledge, not political power, were his highest values. The author of the Declaration of Independence died on July 4, 1826, the fiftieth anniversary of the adoption of the Declaration, the date Americans have chosen for the celebration of the nation’s birthday. Like his fellow Patriot of ’76, John Adams, who also died that day, Jefferson was fully aware of the symbolism; his final words, reportedly, were, Is it the Fourth? Significantly, he wrote in his last letter of the libertarian meaning of American independence: May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.21 Bibliography notes: 1. Jefferson’s Response to Address of Welcome by the Citizens of Albemarle, February 12, 1790. 2.

Jefferson to the Rev. Charles Clay, January 27, 1790. 3. Jefferson to Edward Carrington, May 27, 1788. 4. Jefferson to Edward Carrington, January 16, 1787.

5. Jefferson to Francis W. Gilmer, June 7, 1816. 6. Jefferson to Nehemiah Dodge and others, A Committee of the Danbury Baptist Association, in the State of Connecticut, January 1, 1802 (Draft).

7. See Jefferson to John Norvell, June 11, 1807 (suggesting that editors divide their newspapers into four chapters — Truths, Probabilities, Possibilities, and Lies). 8. Jefferson to Gideon Granger, August 13, 1800. 9.

Jefferson to James Madison, December 24, 1825. 10. Jefferson to Samuel Kercheval, July 12, 1816. 11. Jefferson to Wilson Cary Nicholas, September 7, 1803.

12. Paine to Jefferson, September 23, 1803. 13. Jefferson, First Annual Message, to Congress December 8, 1801. 14.

Jefferson to Dr. Benjamin Rush, June 13, 1805. 15. Jefferson to Abigail Adams, September 11, 1804. 16.

See Jefferson, First Annual Message to Congress (Draft), December 8, 1801. 17. Jefferson to Samuel Kercheval, July 12, 1816. 18. Jefferson to William Charles Jarvis, September 28, 1820. 19. Cf.

Mayer, David, The Constitutional Thought of Thomas Jefferson, Charlottesville: University Press of Virginia, 1994. 20. Jefferson to Joseph Cabell, February 2, 1816. 21. Jefferson to Roger C.

Weightman, June 24, 1826.