Thomas Jefferson: Liberty and Power; C. Carson

he would probably have been a disaster on television, where openness and straightfor ward 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 Jef ferson was being overly anxious for popular approval when he did not speak out on con troversial matters. The truth may be other wise; 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 de scribing natural phenomena than did Jeffer son. Indeed, when time permitted, he filled notebook after notebook with such obser vations. Jefferson had an active and inno vative 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 prolificwriter, served as Minister to France, was first Secretary of State of the United States, and was elected second Vice Presi dent and third President of his country.

141 142 THE FREEMAN • APRIL 1993 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 pro cessing 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 . . . ."1 Indeed, books could be written, and many have been, on Jefferson's life and attain ments. 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 Inde pendence would have made him a fixture in the firmament of the Founders. His Virginia Bill of Religious Liberty was a classic state ment 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. 2 His efforts in founding the Jeffersonian Repub lican Party would surely have been remem bered, as would his architectural contribu tions for the University of Virginia, the magnificent concept of Monticello, and his background aid for the layout of Washing ton, D.C. Much more could be named, but surely his eminence has long since been established.

Jefferson himself wanted to be remem bered for his authorship of the Declaration of Independence, the Virginia Bill of Reli gious 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 beThomas Jefferson, 1743-1826 tween the central and state governments. He championed this aspect of the Constitu tion because it limited government, and limitedgovernment was essential to individ ual 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 unob structed action according to our will, but rightful liberty is unobstructed action ac cording to our will within limits drawn around us by. the equal rights of others. ,,3 Moreover, Jefferson professed a passionate attachment to liberty. He wrote to Dr.

BenjaminRush that he had "sworn upon the altar of God eternal hostility against every form of tyranny over the mindof man.,,4 His belief in liberty was based in the natural rights doctrine, itself grounded in natural THOMAS JEFFERSON: LIBERTY AND POWER 143 law theory. Most proponents of natural rights maintained that natural rights were altered and reduced when man entered so ciety. Jefferson, by contrast, argued that "the idea is quite unfounded that on entering into society we give up any natural right.,,5 In any case, Jefferson was a vigorous advo cate 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 govern ment to gain ground.,,6 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 inde pendent, is absolute also .... ,,7 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 nojust government should refuse, or rest upon inference.,,8 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 over much 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 bal anced 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 sub scribed to the idea that the powers of gov ernment 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 gen eral 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 imagina tions, wills, and determination to protect their interests and assert their prerogatives. Checks and balances entail tension, an on going and, above all, unresolved tension, and men are usually disinclined to live with unresolved tensions. The natural incli nation 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 federaljudiciary before the end of the 1790s. (Judges have never been noted for being reluctant to extend their authority.) Jeffer son was hardly alone in opposing this view, but he was almost certainly the most thor ough 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 144 THE FREEMAN • APRIL 1993 position. For example, he wrote in a letter in 1820: "You [WilliamC. Jarvis] seem ... to consider the judges as the ultimate arbiters of all constitutional questions, a very dan gerous doctrine indeed and one which would place us under the despotism of an oli garchy. . .. The constitution has erected no such single tribunal, knowing that, to what ever hands confided, with the corruptions of time and party its members would become despots. ,,9 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 Consti tution 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 ac tion assigned to them. Thejudges, believ ing 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 exec utive, believing the law to be unconstitu tional, were bound to remit the execution of it, because that power has been con fided to them by the Constitution. That instrument meant that its coordinate 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 judi ciary a despotic branch. 10 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 author ity is not vested in the United States gov ernment. It is a limited government. On the dispersion of powers among the govern ments, 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 gov ernments 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 con centrating all cares and powers into one body . . . . ,,11 The ultimate arbiter of the Constitution, Jefferson explained, "is the people of the Union, assembled by their deputies in convention at the call of Con gress or of two-thirds of the States. ,,12 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 be longed, 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 ca pricious and hence tyrannical. The greatest likelihoodof 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 ConstituTHOMAS JEFFERSON: LIBERTY AND POWER 145 tion. 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 ex plain 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 discre tion, which could never be more properly exercised than where citizens were suf fering without the authority of law, or, which was equivalent, under a law unau thorized by the constitution, and there fore null. In the case of Marbury and Madison, the federal judges declared that commissions signed and sealed by the President were valid, although not deliv ered. I deemed delivery essential to com plete 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.,,13 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 MonticeUo, Virginia, home of Thomas Jefferson 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 act ing 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 ex ecutive branches are their electors. If in the judgment of those authorized to choose them they have behaved improperly, they may be turned out of officeat the end of their terms.

But what about the federal courts? Who wouldruleon the propriety(or constitution ality) 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 them selves, in effect. The appointment of judges is for life during good behavior, if they so desire. They have no fixed term of office, no 146 THE FREEMAN • APRIL 1993 time when they must return to their electors for re-election. True, a judge may be re moved from office when impeached by the House of Representatives and convicted by two-thirds of the Senate present of "trea son, bribery, or other high crimes and mis demeanors. " Not only is it quite difficultto 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 scare crow." 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 foun dations are already deeply laid by their decisions for the annihilation of constitu tional state rights, and the removal of every check, every counterpoise to the engulfing power of which themselves are to make a sovereign part." 14 "At the establishment of our constitu tion," Jefferson wrote, "the judiciary bod ies 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 danger ous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions . . . become law by prece dent, sapping by little and little the founda tions 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. ,,15 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 rights of indiv~duals. "It is not by the consolidation or concentration of powers," he wrote, "but by their distribution that good govern ment is effected." He could be equally concerned, or nearly so, whether the con centration was wrought by the legislative, executive, or judicial branches. For exam pIe, Jefferson complained vigorously in the 1780s about the concentration of powers in the legislative branch of the Virginia gov ernment. "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 govern ment. 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 legisla ture was elected, it would be an "elective despotism," so to speak. 16 What was wanted, he pointed out, was a balance of powers by which government would be restrained and limitedand individuals would be free. Even so, over the years Jefferson became ever more firmlyconvinced that the federal judiciary would be the instrument for con centrating 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 irresponsi ble, that it was very difficult, if not impos sible, 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 instituTHOMAS JEFFERSON: LIBERTY AND POWER 147 tional flaw in the Constitution which gave lifelong tenure to federal judges.

Federal Supremacy But if his pronouncements be taken as predictions, his timing was well off the mark, at least from our perspective. Actu ally, 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 Re construction. 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 concen tration of power. But the concentration did not last much past the end of Reconstruc tion. 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 fed eral government. The Sixteenth Amend ment, ratified in 1913, and the Federal Re serve 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 consol idate its dominance. The more or less per manent concentration of power in·the fed eral 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 consoli dation of power in the 1930s. On the con trary, 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 concen trate power during the 1930s. Congress became a pliant instrument of the executive branch, forgoing its responsibilities to ob serve 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 1970sthat the Constitution no longer served as a re straint on government. Instead, it had been largely reconstrued as the fount of a cornu copia of benefits bestowed upon a depen dent people by a government ravenous for the wealth of America and bent upon direct ing 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 148 THE FREEMAN • APRIL 1993 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 Consti tution, his suggestion for amending it ad dressed only that point. Jefferson proposed that judges have their tenure limited to a fixedterm. He said, "Let the future appoint ments ofjudges 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]. ,,17 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 con clusion that Jefferson's proposal, which has never been adopted, falls far short of what is now necessary to restore the Constitu tion. 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 ex ecutive branches no longer consider it any part of their duty to determine the consti tutionality 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 au thorized by or in violation of the Constitu tion. Trial for those accused should be in United States District Courts before a jury charged with determining whether a viola tion 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 lightinga fire on the 250th anniversary of his birth. They shed a lighton the Constitution, our system ofgovernment, and remind us that it was adopted to protect individual liberty from oppression, not to justify and sanction it by obfuscatory constructions. D 1. Richard Hofstadter, The American Political Tradition (New York: Vintage Books, 1955), pp. 23-24.

2. This is the title of a book in which Jefferson is included. 3. Edward Dumbauld, ed., The Political Writings of Thomas Jefferson (New York: The Liberal Arts Press, 1955), p.55. 4. Dumbauld, p. 76. 5. Dumbauld, p. 55. 6. Dumbauld, p. 138. 7. Frank Irwin, ed., Letters of Thomas Jefferson (Tilton, N.H.: Sanbornton Bridge Press, 1975), p. 215. 8. Irwin, p. 40. 9. Dumbauld, p. 153. 10. Dumbauld, pp. 154-55. 11. Adrienne Koch and William Peden, ed., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1944), pp. 660-61. 12. Dumbauld, p. 148. 13. Irwin, pp. 215-16. 14. Thomas Jefferson, "The Constitution-Endangered by the Federal Judiciary," Foundations of Liberty, James R. Patrick,ed., vol. I (1988), p. 26. 15. Jefferson, p. 27. 16. Quoted in Hofstadter, p. 29. 17. Allen Ellery Burgh, ed., The Writings of Thomas Jefferson, vol. XV (Washington: Jefferson Memorial Associ ation, 1907), p. 331.