Dr. Clarence Carson is an American historian, a prolific author, and a longtime contributor to The Freeman. This essay is based on his newest book, Basic American Government, which is available from The American Textbook Committee, Rte. 1, Box 13, Wadley, AL 36276, for $32.95 hardcover.
It is doubtful that Thomas Jefferson could have been elected President in the twentieth century. It is almost equally doubtful that he could have been elected to that high office at any time past 1850. Now I do not draw these conclusions simply because, as we say, times change, and any person thrown suddenly into another era would be more or less out of place and unsuited to positions of power and prestige in the later era. It is rather that Jefferson did not have the temperament, character, and turn of mind to have won election in the later era.
Jefferson shrank from public debate as a young child does from going into the darkness alone. He avoided, so far as possible, all occasions for public speaking. He disliked pomp, ceremony, confrontations, and heated discourse. As President, he preferred written opinions from his department heads rather than to convene cabinet meetings in an attempt to reach conclusions. He was tall, gangly, freckled, sandy-haired, and some thought they detected a sneakiness about him. For this latter reason, especially, he would probably have been a disaster on television, where openness and straightforward honesty of appearance is essential, though actors can feign such looks with ease, while honest men with a squint might be thought scoundrels. Some thought Jefferson was being overly anxious for popular approval when he did not speak out on controversial matters. The truth may be otherwise; Jefferson loved the truth too much to see it traded casually in the marketplace.
In any case, Jefferson was retiring and what we would call “cerebral.” Possibly no man since Aristotle took more pleasure in observing, recording, and classifying or describing natural phenomena than did Jefferson. Indeed, when time permitted, he filled notebook after notebook with such observations. Jefferson had an active and innovative interest in every intellectual pursuit and activity of his day. He carried on a vigorous correspondence with European and American philosophers and scientists throughout much of his life. His talents were varied and his interests universal. He was trained in the law and admitted to the bar, served in the colonial legislature of Virginia and the Second Continental Congress, drafted the Declaration of Independence, was elected governor of Virginia, was a prolific writer, served as Minister to France, was first Secretary of State of the United States, and was elected second Vice President and third President of his country.
As if all that were not enough, he was a gentleman farmer, a manager of a large estate, a scientist, an inventor, and an architect. Of his inventions, “He invented a hempbeater, worked out a formula for a mold board plow . . . . devised a leather buggy, a swivel chair, and a dumbwaiter . . . . He was constantly studying new plows, steam engines, metronomes, thermometers, elevators, and the like, as well as the processing of butters and cheeses. He wrote a long essay for Congress on standards of weights and measures in the United States . . . . [and] conceived the American decimal system of coinage . . . .”
Indeed, books could be written, and many have been, on Jefferson’s life and attainments. Several of his contributions, each on its own, might have earned him a secure place in American history. Almost certainly his authorship of the Declaration of Independence would have made him a fixture in the firmament of the Founders. His Virginia Bill of Religious Liberty was a classic statement even before it was adopted by that legislature. His two terms as President by themselves have earned him a place among America’s Ten Greatest Presidents. His efforts in founding the Jeffersonian Republican Party would surely have been remembered, as would his architectural contributions for the University of Virginia, the magnificent concept of Monticello, and his background aid for the layout of Washington, D.C. Much more could be named, but surely his eminence has long since been established.
Jefferson himself wanted to be remembered for his authorship of the Declaration of Independence, the Virginia Bill of Religious Liberty, and his contribution to the founding of the University of Virginia. These are indeed enduring monuments, though his First Inaugural Address is no less one. Yet there is something else that he did for which he most needs to be remembered in our time. Jefferson was a vigorous and instructive advocate of the constitutional dispersion of powers of government—the separation of powers within the United States government and their dispersion between the central and state governments. He championed this aspect of the Constitution because it limited government, and limited government was essential to individual liberty.
Defender of Liberty
It is well known, of course, that Thomas Jefferson was an outspoken advocate of individual liberty. He defined it this way: “Of liberty then I would say that in the whole plenitude of its extent, it is unobstructed action according to our will, but rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.” Moreover, Jefferson professed a passionate attachment to liberty. He wrote to Dr. Benjamin Rush that he had “sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” His belief in liberty was based in the natural rights doctrine, itself grounded in natural law theory. Most proponents of natural rights maintained that natural rights were altered and reduced when man entered society. Jefferson, by contrast, argued that “the idea is quite unfounded that on entering into society we give up any natural right.” In any case, Jefferson was a vigorous advocate of individual liberty.
There should be no doubt, either, that Jefferson believed that government was the greatest, if not only, threat to individual liberty. He wrote that “The natural progress of things is for liberty to yield and government to gain ground.”This is so because those who gain positions of power tend always to extend the bounds of it. Power must always be constrained or limited else it will increase to the level that it will be despotic. Jefferson wrote to Judge Spencer Roane in 1819, “It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also. . . .” With this principle of necessary limitation in mind, Jefferson declared “that a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest upon inference.”
Nor did his many years in government service assuage his fears of government nor lead him to view it as any less a threat to liberty. If anything, it confirmed him in his earlier beliefs about not entrusting overmuch to those in power. But it was not so much Jefferson’s tenacious attachment to liberty nor especially his fear of government power that set him apart from many of his contemporaries. Most American leaders of the founding era expressed similar beliefs. It was also widely believed that the powers of government should be separated and balanced so that men in power, in their struggle with others for power, would be constrained and limited in their exercise of power. This was generally believed to be the necessary condition for the continuation of liberty.
Most of Jefferson’s contemporaries subscribed to the idea that the powers of government should be dispersed—at least so far as to divide them among the three branches. Many became persuaded, too, that dividing the powers of government between the general and state governments was a good thing. But few, if any, saw as clearly as Jefferson did how much effort had to be put into making such a system work and how far the effort had to be carried.
If the system of checks and balances is to work, he thought, it would be because those entrusted with power used their imaginations, wills, and determination to protect their interests and assert their prerogatives. Checks and balances entail tension, an ongoing and, above all, unresolved tension, and men are usually disinclined to live with unresolved tensions. The natural inclination is to establish some authority who, or which, has the assignment to settle the issues, once and for all, and resolve the tension. Jefferson understood more clearly than anyone else ever has, or at least discussed it more clearly, that the resolution of these tensions—arising from different claims to power among the branches or between the states and the United States—would be to remove the checks and balances.
Balances and Checks
For Jefferson, the preserving and working of the checks and balances in government depended upon where the authority was lodged to interpret the Constitution. The ink was hardly dry on the Constitution before some were asserting that the federal courts alone could interpret the Constitution and that the ultimate authority to do so was the Supreme Court. Indeed, that view was widely held and claimed by much of the federal judiciary before the end of the 1790s. (Judges have never been noted for being reluctant to extend their authority.) Jefferson was hardly alone in opposing this view, but he was almost certainly the most thorough in working out and asserting a counter-position.
While he was President, he asserted his position by his action (or inaction) rather than by theories, but after he had left office he made clear in letters and otherwise his position. For example, he wrote in a letter in 1820: “You [William C. Jarvis] seem . . . to consider the judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy . . . . The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots.”
Several editors of newspapers had been found guilty of violating the Sedition Act of 1798 and sent to prison. When Jefferson became President, he pardoned and freed such of them as were still in prison. In correspondence with Abigail Adams in 1804, he justified his action this way:
You seem to think it devolved on the judges to decide on the validity of the Sedition Law. But nothing in the Constitution had given them a right to decide for the executive, more than to the executive to decide for them. Both magistrates 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 the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it, because that power has been contided to them by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the [sole] right to decide what laws are constitutional . . . would make the judiciary a despotic branch.
Jefferson’s position was that neither the United States, nor any of the branches of the government, nor of the states, is the ultimate arbiter of the Constitution. Ultimate authority is not vested in the United States government. It is a limited government. On the dispersion of powers among the governments, he wrote to Joseph C. Cabell in 1816: “Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties . . . .” and so forth. “It is by dividing and subdividing . . . that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body . . . .” The ultimate arbiter of the Constitution, Jefferson explained, “is the people of the Union, assembled by their deputies in convention at the call of Congress or of two-thirds of the States.” In short, if some issue of power so agitates the country, let the matter be settled and put to rest by constitutional amendment.
Jefferson rightly discerned that if any body in government could ultimately settle questions of the location of constitutional authority, it would tend to settle them in favor of the government to which it belonged, and ultimately its very own body. In short, the tendency would be to concentrate all authority in one body, and that body would have few or no restraints on its authority. Such a concentration of power would sooner or later be arbitrary and capricious and hence tyrannical. The greatest likelihood of such concentration would be in the general government at the expense of the state governments and the people.
No Judicial Supremacy
And, in the general government, the greatest danger of one branch usurping all power, Jefferson thought and feared, was the federal judiciary, and especially the Supreme Court. Lest it be thought that Jefferson was picking on these courts and denying them their constitutional authority, his full position on the division of power in the federal government should be explained. Jefferson understood that the federal courts had an important role in interpreting the Constitution. In determining which law to apply to particular cases, they must, of course, interpret and apply the Constitution. The Supreme Court would have the final say on the law—so far the courts and matters that properly concerned them were at issue. But its interpretations would have no sway over the other branches as to the meaning of the Constitution in matters that concern them. He explained it this way:
“My construction of the constitution . . . is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. I will explain myself by examples, which having occurred while I was in office, are better known to me . . . :
A legislature had passed the sedition law. The federal courts had subjected certain individuals to its penalties of fine and imprisonment. On coming into office, I released these individuals by the power of pardon committed to executive discretion, which could never be more properly exercised than where citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the constitution, and therefore null. In the case of Marbury and Madison, the federal judges declared that commissions signed and sealed by the President were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed . . . . and I withheld delivery of the commissions. They [the courts] cannot issue a mandamus to the President or legislature, or to any of their officers.”
In sum, he held that all the branches of government are independent of one another in the sources of their powers and the exercise of them, including each of the houses of Congress. In performing their constitutionally assigned duties, they are the judges of constitutionality. Thus, either house of the Congress may decide that a bill before it is unconstitutional, and refuse to pass it. The bill cannot become law, in that case, and the power of all the other branches are impotent to make it otherwise. In like manner, the President, acting within the frame of his office, may veto bills, refuse court orders, and pardon those convicted of crimes. The courts, too, are independent within their realms. Are, then, the members of the legislative and executive branches above the law? Jefferson would have denied that emphatically. They are presumably acting according to their interpretation of the Constitution within their departments as the courts are presumably acting in accord with their interpretation of the Constitution in theirs. The ultimate arbiters or judges of the propriety of acts of the legislative and executive branches are their electors, If in the judgment of those authorized to choose them they have behaved improperly, they may be turned out of office at the end of their terms.
But what about the federal courts? Who would rule on the propriety (or constitutionality) of their acts? There was the rub, as Jefferson saw it, and he was substantially correct. The courts, and especially (always) the Supreme Court, are a law unto themselves, in effect. The appointment of judges is for life during good behavior, if they so desire. They have no fixed term of office, no time when they must return to their electors for re-election. True, a judge may be removed from office when impeached by the House of Representatives and convicted by two-thirds of the Senate present of “treason, bribery, or other high crimes and misdemeanors.” Not only is it quite difficult to get a two-thirds vote from the Senate for conviction, but it is not at all clear that usurpation of power or misconstruing the power of the court under the Constitution is an offense by the above definition.
At any rate, Jefferson doubted that the fear of impeachment was little more than a paper tiger, or as he put it frequently in private correspondence, “not even a scarecrow.” He put the danger this way: “We already see the power, installed for life, advancing with a noiseless and steady pace to the great object of consolidation. [“The engine of consolidation,” he had said, “will be the federal judiciary . . . .”] The foundations are already deeply laid by their decisions for the annihilation of constitutional state rights, and the removal of every check, every counterpoise to the engulfing power of which themselves are to make a sovereign part.”
“At the establishment of our constitution,” Jefferson wrote, “the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions . . . become law by precedent, sapping by little and little the foundations of the constitution, and working its change by construction . . . . In truth, man is not made to be trusted for life if secured against all liability to account.”
Jefferson’s great concern, of course, was the preservation of individual liberty. He was opposed to oppression, whatever its source. The great danger to liberty is not simply government itself but concentrated and unrestrained government which can and will ride roughshod over the fights of individuals. “It is not by the consolidation or concentration of powers,” he wrote, “but by theft distribution that good government is effected.” He could be equally concerned, or nearly so, whether the concentration was wrought by the legislative, executive, or judicial branches. For example, Jefferson complained vigorously in the 1780s about the concentration of powers in the legislative branch of the Virginia government. “All the powers of government,” he declared, “legislative, executive, and judiciary, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one . . . .” Nor was he in the least relieved that since the legislature was elected, it would be an “elective despotism,” so to speak. What was wanted, he pointed out, was a balance of powers by which government would be restrained and limited and individuals would be free.
Even so, over the years Jefferson became ever more firmly convinced that the federal judiciary would be the instrument for concentrating power in the federal government and the reducing of the other branches to subordinate status. He may have been drawn to this conclusion by the long tenure of John Marshall as Chief Justice of the Supreme Court, by his dominance of that body, and by his tendency to interpret the Constitution in such a way as to subordinate the states and enhance the power of the federal government. Be that as it may, Jefferson saw clearly and correctly that the potential of the courts for undermining the Constitution and tipping the flow of power toward themselves was there. He was right that the courts were potentially irresponsible, that it was very difficult, if not impossible, to hold the Supreme Court to account for vagrant opinions. He was right, too, in fearing that the states would be the first to have their independence undermined on the way to the concentration of power. He was on the mark as well in detecting an institutional flaw in the Constitution which gave lifelong tenure to federal judges.
But if his pronouncements be taken as predictions, his timing was well off the mark, at least from our perspective. Actually, they were more like warnings and caution signs than predictions. In any case, it was well into the twentieth century, by my reckoning, before the concentration which he discerned as potentiality came to fruition. Granted, there was a major thrust toward the concentration of power in the Union government during the Civil War and Reconstruction. It was spearheaded by the executive, Abraham Lincoln, that is, and later taken over by Congress during the presidencies of Johnson and Grant. The courts figured hardly at all in this concentration of power. But the concentration did not last much past the end of Reconstruction. Neither Congress nor the Presidents nor the federal courts nor even the United States government was especially dominant over the next two decades or so. The states reasserted their roles and a kind of balance of power was restored to the Union.
The next full-fledged onslaught of the concentration of power came in the 1930s, though it was prefigured by developments just before and during World War I. The Seventeenth Amendment, adopted in 1913, stripped the state governments of their most effective restraining influence upon the federal government. The Sixteenth Amendment, ratified in 1913, and the Federal Reserve Act, passed shortly afterward, prepared the way for the federal government to control the money and banking system and gather the wealth with which to consolidate its dominance. The more or less permanent concentration of power in the federal government began in the 1930s.
Again, however, it was not the federal courts which led the way in thrusting aside the constitutional restraints on the consolidation of power in the 1930s. On the contrary, the courts, and the Supreme Court in particular, carried on a major rearguard campaign to preserve the integrity of the Constitution, down to 1938, at which point a reconstituted Court knuckled under but still did not take the lead in undermining the Constitution. It was the executive branch, led and prodded by Franklin D. Roosevelt, which pushed to consolidate and concentrate power during the 1930s. Congress became a pliant instrument of the executive branch, forgoing its responsibilities to observe and protect the Constitution, and passing whatever legislation the President thought fit to suggest. Congress did begin to stiffen its spine near the end of the decade, but its efforts were too little and too late.
All this is not to say that Jefferson erred about the consolidating potential of the federal courts. His timing was off but his analysis was right. Under the benevolent domination of Chief Justice Earl Warren, the Supreme Court took the lead in the 1950s and 1960s, and during those two decades it outconsolidated and outconcentrated the executive and legislative concentrators and consolidators of earlier decades. The high court planted its foot on the neck of the state and local governments, took away their independence of action, compelled them to perform their functions under its directives, and removed them entirely as an obstacle to federal power.
The substantive obstacles to the exercise of federal power, and especially by the Supreme Court, had been so far ignored, evaded, and misconstrued by the 1970s that the Constitution no longer served as a restraint on government. Instead, it had been largely reconstrued as the fount of a cornucopia of benefits bestowed upon a dependent people by a government ravenous for the wealth of America and bent upon directing the course of the lives of Americans. Is this oppression? Jefferson would have said so, for he said that concentrated power is by definition oppression. But Jefferson spoke in terms of essences, not existences, of reason, not feeling, and many Americans will not recognize oppression until they feel it. That, too, may come; for many, it already has.
The strange thing is that even though this vast consolidation and concentration of power has taken place in the twentieth century, the Constitution has been little changed since 1791, and then mainly by the Fourteenth, Sixteenth, and Seventeenth Amendments, and these were only made adjuncts of the concentration, they did not mandate it. The Constitution is still there to be recovered, if we but knew how and had the will to do it.
Since Jefferson thought that the federal courts posed the main threat to the Constitution, his suggestion for amending it addressed only that point. Jefferson proposed that judges have their tenure limited to a fixed term. He said, “Let the future appointments of judges be for four or six years, and renewable by the President and Senate. This will bring their conduct, at regular periods, under revision and probation, and may keep them in equipoise between the governments [state and federal].”
A New Check
My own studies of how power became concentrated in the United States (to be published in the forthcoming book, Basic American Government) lead me to the conclusion that Jefferson’s proposal, which has never been adopted, falls far short of what is now necessary to restore the Constitution. In fact, he was not addressing that problem, for it retained its full vigor during his lifetime. He did foresee the corruption of the executive and legislative branches when the Constitution was undermined. That has indeed taken place. The legislative and executive branches no longer consider it any part of their duty to determine the constitutionality of their acts. They no longer consider much except how far they can go before the courts call a halt. As for the courts, they are more apt to consult the public temper than the Constitution.
It seems to me that in our present condition, the only means of getting judges, legislators, and executives to consult the actual provisions of the Constitution and to obey the oaths they take to observe its bounds and protect it is to adopt sanctions against its violation or evasion. In sum, it should be made a crime punishable by removal from office for any government officer, including members of Congress, to participate affirmatively in any act not authorized by or in violation of the Constitution. Trial for those accused should be in United States District Courts before a jury charged with determining whether a violation has taken place and a judge empowered to remove them from office. This proposal is more fully developed in my forthcoming book, though even that could benefit by fuller treatment.
At any rate, Thomas Jefferson’s insights are still capable of lighting a fire on the 250th anniversary of his birth. They shed a light on the Constitution, our system of government, and remind us that it was adopted to protect individual liberty from oppression, not to justify and sanction it by obfuscatory constructions.
- Richard Hofstadter, The American Political Tradition (New York: Vintage Books, 1955), pp. 23-24.
- This is the title of a book in which Jefferson is included.
- Edward Dumbauld, ed., The Political Writings of Thomas Jefferson (New York: The Liberal Arts Press, 1955), p. 55.
- Dumbauld, p. 76.
- Ibid., p. 55.
- Ibid., p. 138.
- Frank Irwin, ed., Letters of Thomas Jefferson (Tilton, N.H.: Sanbornton Bridge Press, 1975), p. 215.
- Irwin, p. 40.
- Dumbauld, p. 153.
- Ibid., pp. 154-55.
- Adrienne Koch and William Peden, ed., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1944), pp. 660-61.
- Dumbauld, p. 148.
- Irwin, pp. 215-16.
- Thomas Jefferson, “The Constitution . . . -Endangered by the Federal Judiciary,” Foundations of Liberty, James R. Patrick, ed., vol. I (1988), p, 26.
- Ibid., p. 27.
- Quoted in Hofstadter, p. 29.
- Allen Ellery Burgh, ed., The Writings of Thomas Jefferson, vol. XV (Washington: Jefferson Memorial Association, 1907), p. 331.