THOMAS JEFFERSON AND CONSTITUTIONALISM
R. B. BERNSTEIN
Throughout his life, Thomas Jefferson pondered the constellation of principles and issues
bound up in the term “constitutionalism.” The historian Don E. Fehrenbacher defined
constitutionalism as “a complex of ideas, attitudes, and patterns of behavior elaborating the
principle that the authority of government derives from and is limited by a body of fundamental
law.” Jefferson paid equal attention to both halves of this definition. In his era, American
constitutionalism evolved rapidly under pressures exerted by two sets of forces – intellectual
forces released by the trans-Atlantic Enlightenment, and political forces unleashed first by the
conflict between Great Britain and her North American colonies and then by the Americans’
struggles to declare, win, and preserve independence.
Jefferson’s constitutional views were not products of abstract thinking by a scholar
isolated from public affairs. Rather, they shaped and were shaped by his lifelong involvement
with politics, for Jefferson was a thinking politician rather than a political thinker. Though he
described himself as a reluctant politician, he practiced politics with skill and occasional
ruthlessness. At the same time, like other leading figures of his era, he often thought beyond the
limits of actual political contests, exploring the theoretical consequences of his ideas and actions.
Thus, any discussion of Jefferson and constitutionalism must examine the practical contexts in
which he worked and his efforts to systematize his constitutional thought beyond a given
problem.
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David N. Mayer, author of the only book-length analysis of Jefferson’s constitutional
thought, argues that we can best understand Jefferson’s constitutional thought as blending
libertarianism, federalism, and republicanism. By libertarianism, Mayer means a severe
restriction on the uses and powers of government, emphasizing a wide range of civil and political
liberties for members of the political community (by whom Jefferson meant white men). By
federalism, Mayer means belief in a federal system in which the several states are held together
by mutual interest and affection rather than coercion by the federal government, which is limited
to the powers expressly conferred on it by the U.S. Constitution. By republicanism, Mayer
means a commitment to the ideals of republican government, rejecting monarchy and aristocracy
and promoting a devotion to the general good.
Any study of Jefferson and constitutionalism must address his failures to reconcile his
professed commitments to principle (such as freedom of the press and human equality) with his
actual practice, both personal and political. These failures raise troubling questions about
Jefferson’s sincerity, and about any politician’s ability to reconcile theory and practice in dealing
with the conflicts between liberty and power at the core of constitutional government.
Jefferson’s engagement with constitutionalism has its roots in his education, much of
which took place in the province’s capital, Williamsburg. Three mentors helped him to build the
intellectual context framing his ideas about constitutionalism. Professor William Small of the
College of William and Mary opened for Jefferson the world of the Enlightenment, with its
synthesizing approach to knowledge and its confidence in human reason. Virginia’s lieutenant
governor, Francis Fauquier, introduced him to deism, shaping his views of religion and the
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proper relations between church and state. Finally, the learned attorney George Wythe
supervised his legal training, backed his admission to the bar, and became his hero and role
model. Under Wythe’s guidance, Jefferson mastered the English common law, setting that
mastery within a broad cultural and historical context.
Jefferson practiced law from 1767 until he left the bar in 1773. In 1769, he was elected
to Virginia’s House of Burgesses, a natural step for the oldest son of a prominent member of the
landowning gentry. He took little part in legislative debates, owing to his lifelong distaste for
public speaking, but he won respect for his capacity for hard work, his skill as a draftsman, and
his mastery of parliamentary law (which Wythe had insisted that he study).
Jefferson joined Virginia’s political elite during Britain’s struggle with its North
American colonists over their place within the British constitutional system. A close student of
that controversy, he sided with such radical critics of British policy as Patrick Henry and George
Washington. He first expounded his constitutional thought in his 1774 pamphlet A Summary
View of the Rights of British America. Though Jefferson drafted it as a set of instructions from
the Virginia provincial convention to the colony’s delegation to the First Continental Congress,
the convention deemed his draft too radical, but his friends so admired it that they published it as
an anonymous pamphlet. Repeatedly reprinted, it found readers even in London. Because
Jefferson’s authorship was an open secret, A Summary View won him a reputation as an eloquent
advocate of the radical cause.
Jefferson challenged the British claim that, because the colonies were founded on lands
conquered by England, the colonists could claim only those rights that the mother country chose
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to recognize. By contrast, he insisted that the colonists had settled unoccupied lands by their
own energies and efforts, and he deduced three consequences from these facts. First, the
colonists were entitled to all the rights that any English subject had under the unwritten English
constitution. Second, these rights included the right to be governed by a legislature in which
they were represented directly. Jefferson thus rejected the British concept of virtual
representation – the idea that members of Parliament represented the whole British people, even
if the people did not actually elect those members. Third, the sole tie linking the colonies to
Britain was their allegiance to King George III, requiring him as a “patriot king” to resolve fairly
the conflicting interests of all his subjects.
In June 1775, Jefferson was chosen a Virginia delegate to the Second Continental
Congress in Philadelphia. On July 5, he signed the “Olive Branch Petition,” Congress’s last
appeal to George III to mediate the crisis. George III refused to receive the petition, declaring
the colonists out of his allegiance and protection. In Jefferson’s eyes, the king had broken the
last tie binding him to the colonies, paving the way for Americans to declare independence.
On 7 June 1776, Virginia delegate Richard Henry Lee introduced in Congress three
resolutions proposed by the Virginia convention, calling on Congress (1) to declare American
independence, (2) to frame articles of confederation and perpetual union, and (3) to seek foreign
allies. Because Lee had to return to Virginia, Jefferson took his place on the committee that
Congress named to draft a declaration of independence, with John Adams of Massachusetts,
Benjamin Franklin of Pennsylvania, Roger Sherman of Connecticut, and Robert R. Livingston of
New York. Jefferson was chosen to prepare the draft.
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Jefferson’s draft Declaration synthesized more than a decade of American constitutional
argument. It argued that King George III had violated his coronation oath, opening him to
charges that he sought to subject the colonies to tyranny and therefore justifying their bid for
independence. The Declaration’s famous passage invoking Lockean political theory laid the
foundation for its core purpose – justifying independence. In his indictment of George III,
Jefferson included charges rooted in English constitutional history, the only exceptions being
those few items peculiarly rooted in the American context.
Congress cut a fourth of Jefferson’s draft and reworked other passages; wounded, he
insisted that his version was superior. As late as 1821, he copied his edited draft into his
autobiography in the hope that readers would prefer his version. Ironically, his documentation of
the Declaration’s editing demonstrated that Congress greatly improved the document’s force and
cogency. For example, the most famous deleted passage, denouncing George III for imposing
the slave trade on the Americans, is flawed in history and logic: American slavery predated not
just George III’s accession to the throne in 1760 but his birth in 1738; Virginia and other
colonies had adopted statutes before that time authorizing and regulating slavery
Congress declared American independence on July 2, 1776, and adopted the revised
Declaration on July 4; popular memory condensed the two events into one, transforming the
Declaration and its historical importance. Like the Roman god Janus, the Declaration looks
backward and forward – backward, giving the last American word in the constitutional dispute
with Britain, and forward, stating the fundamental principles underlying the new American
experiments in government. Some of the first state constitutions cited the Declaration to justify
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Americans in exercising the constituent power (the power to create a government). The
Declaration also has become part of the American founding covenant with the state constitutions
and with (first) the Articles of Confederation and (second) the Constitution of the United States.
In the process, it has become a revered statement of American founding principles, acquiring
meanings beyond those envisioned by Jefferson or his colleagues.
While in Congress, Jefferson kept thinking about Virginia. In June 1776, wanting to
restore legitimate government to Virginia, he drafted a new state constitution. Unable to present
his draft in person, he entrusted it to Wythe, who carried it to Williamsburg. Wythe arrived too
late for the convention to consider Jefferson’s draft, for they already had adopted a constitution
framed by George Mason. Even so, the delegates so admired Jefferson’s preamble indicting
George III (a passage that he adapted for his draft Declaration of Independence), that they
grafted it onto Mason’s constitution.
Wary of executive and judicial power, Jefferson put a large, powerful legislature at the
center of his draft constitution. A weak governor (lacking powers to veto legislation or to
appoint officials) would be chosen by and responsible to the legislature; judicial institutions also
played dependent roles. The key differences between Jefferson’s draft and the prevailing model
of state constitution-making (including the 1776 Virginia constitution) were that, first, Jefferson
incorporated rights-protecting provisions (antecedents of a bill of rights) into the constitutional
text instead of grouping them as a preamble at the head of the document, and, second, that he
wanted a constitution to be adopted by vote of the people, who had sole authority to wield the
power to constitute a government. Disappointed by the Virginia convention’s promulgation of
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the 1776 constitution, Jefferson for the rest of his life dismissed it as “no constitution at all”
because of its defective origins.
In the fall of 1776, on his return to Virginia, Jefferson was elected to the state
legislature’s lower house, the House of Delegates. There, he launched a campaign to reform
Virginia’s law by purging it of all vestiges of its former colonial status. He first proposed to
abolish the doctrines of entail (keeping an estate within the family) and primogeniture (oldest son
gets all), arguing that both unduly limited the transferability of land, indirectly barring from
political participation those Virginians who otherwise could have met property qualifications for
voting and holding office.
After winning both battles, Jefferson persuaded the House of Delegates to launch a
general project to revise the state’s laws. As the project’s chief advocate, Jefferson became
chairman of a Committee of Revisors, including two leaders of the Virginia bar, George Wythe
and Edmund Pendleton, and two prominent politicians who were not lawyers, George Mason and
Thomas Ludwell Lee. Mason and Lee withdrew, citing their lack of legal expertise, and
Jefferson, Wythe, and Pendleton set to work.
Of the 126 proposed bills in the committee’s 1779 report, three bills drafted by Jefferson
stand out. The most important was his Bill for Religious Freedom, which would disestablish the
Episcopal Church (renamed the Anglican Church). The bill’s preamble denied government
authority over the human mind and government power to dictate what any individual might
believe about religion; it went beyond religious toleration (under which a majority chooses not to
coerce a minority) to embrace the principle of religious liberty. Protecting the secular realm and
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the individual mind from the corrupting alliance of church and state, the bill barred government
from levying any tax to support religion. Finally, while conceding that a statute cannot control a
constitution and that a later legislature could repeal the measure, the bill warned that such repeal
would be “a violation of natural right.”
Jefferson also took special pride in two other bills in the report. His Bill for the More
General Diffusion of Knowledge would have created a pyramidal, meritocratic system of public
education to ensure an informed citizenry and to prepare the best and the brightest for political
leadership. His Bill for Proportioning Crimes and Punishments showed the influence of the
Italian philosophe Marquis Cesare di Beccaria’s 1769 treatise Of Crimes and Punishments
(which Jefferson and John Adams admired for its application of Enlightenment doctrines to
humanizing the penalties imposed by criminal law). Despite Jefferson’s hopes, the legislature
took no action on the report of the Committee of Revisors.
In June of 1779, the legislature elected Jefferson Virginia’s second governor, succeeding
Patrick Henry; it re-elected him in 1780. Governor Jefferson had many duties but he soon
learned that the 1776 constitution gave him almost no power to carry them out. In June of 1781,
just before the end of his second term, he confronted a grave crisis – the British invasion of
Virginia. He learned that a fast-moving column of British infantry was closing on the temporary
capital of Charlottesville, aiming to capture the state’s capital and its government. Overseeing
the government’s evacuation to Staunton and evacuating his family to his plantation at Poplar
Forest, Jefferson left only after finishing these tasks, narrowly missing capture himself. Then he
made a major mistake. Instead of reporting to the state government at Staunton, Jefferson,
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believing that with the end of his term he was again a private citizen, rejoined his family, leaving
the state without a governor for a week. Charging him with incompetence and cowardice, his
critics threatened to censure him. That fall, after vindicating his conduct to the legislature
(which abandoned its plans to censure him and instead adopted a resolution of thanks), he retired
from politics. Not until after his wife’s death in 1782 did he return to public life. Even so, the
ordeal of his governorship darkened his view of politics and left him with a new appreciation of
the usefulness as well as the limitations of executive power.
Jefferson began one project during his governorship that had far-reaching consequences
for himself and American literature. In early 1781, he received from a French diplomat, Francois
Barbe de Marbois, a questionnaire sent to all thirteen states’ governors to collect information
about America. Intrigued, he began a book-length manuscript titled Notes on the State of
Virginia. Notes, one of the most important American books published before 1800, stated his
vision of a good society, demonstrating that Virginia was that good society and expounding on
the constitution, laws, and institutions that a good society would have.
In 1784, Jefferson returned to public life as a Virginia delegate to the Confederation
Congress. There he helped to shape American policy for the western territories ceded by Great
Britain under the Treaty of Paris of 1783. Rejecting colonialism, Jefferson devised a system to
organize these lands into territories that would then join the Union as states equal to the original
thirteen. This territorial system found its way into Article IV of the Constitution of the United
States in 1787, shaping not just the development of the constitutional system but also the new
nation’s growth across the continent.
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That fall, Congress sent Jefferson to Europe as an American diplomat. First chosen as
one of the negotiators of a peace treaty with Britain (a task finished before he could set sail), then
assigned with John Adams and Benjamin Franklin to negotiate treaties of amity and commerce,
and finally named to succeed Franklin as American minister to France, Jefferson was a first-rate
diplomat and a clear-eyed observer of European affairs. Though he enjoyed his years there, the
contrast between the Old and New Worlds left him disillusioned; in 1785, he told James Monroe
that only after experiencing life in Europe did he truly grasp the difference between American
innocence, freedom, and virtue and European corruption and decadence. He concluded that no
young American should visit Europe lest he fall prey to European decadence and corruption.
Jefferson’s experience of the Old World’s ills traumatized him; long after returning to America
he was wary of the least sign that corruption might take root at home, and this fear shaped his
development as a politician in the early years of government under the newly-adopted
Constitution of the United States.
Beyond his diplomatic activities, Jefferson used his pen to promote America to European
readers. His principal work in this line was Notes on the State of Virginia, which he published in
London in 1787. Notes launched an American counterattack in the European war of words over
America. Jefferson refuted claims made by European philosophes that nature and human beings
degenerated in the New World; convinced that these claims were bad science and that they
struck potentially fatal blows to European commerce with and immigration to America, he also
believed that such arguments threatened the constitutional values that he cherished. To refute the
European indictment of America, Jefferson deployed his full resources of information and his
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analytical and rhetorical skill. Further, he maintained, the Americans’ political and
constitutional values, combined with the idyllic conditions of American life (especially in
Virginia), promised happiness and virtue nourished by and supporting republican constitutional
government. In Notes, Jefferson expounded on his conviction that an agrarian republic peopled
by yeoman farmers was the best form of society and government. He also reassessed the
Virginia constitution of 1776, proposing popular election of both legislative houses and the
governor, strengthening of the executive branch, and adoption of a more effective system of
checks and balances. He praised the legal reforms that he had advocated in 1779, hailing the
enactment of some of them, particularly the Virginia Statute for Religious Freedom, under the
leadership of his friend and ally James Madison.
As an American diplomat, Jefferson experienced firsthand the Confederation’s
weaknesses. Realizing that European powers dismissed the United States as helpless and weak,
he argued for American constitutional reform His duties in France prevented him from serving
in the Federal Convention of 1787, but he and John Adams, the American minister to England,
watched with hope as the states chose delegates and the Convention began its work in
Philadelphia. Jefferson wrote enviously to Adams that the convention seemed “an assembly of
demigods,” but he denounced their rule of secrecy as an “abominable precedent.” Like Adams
and their fellow citizens at home, he had to wait for months to read the Constitution of the
United States. In the late fall of 1787 he received the Constitution, with a long letter from
Madison explaining what the Convention had done and how disappointed he was with the
document. Jefferson answered Madison at equal length. Declaring himself “captivated” by the
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Constitution’s balancing of competing claims of large and small states, and by its system of
checks and balances, he noted that he did not like two aspects of the Constitution.
First, he decried its lack of a bill of rights, arguing that “a bill of rights is what the people
of every nation on earth are entitled to, and what no just government should refuse or rest on
inference.” Sending Madison a series of letters laying out an array of arguments for a bill of
rights, Jefferson rejected Madison’s worry that a bill of rights would be a mere “parchment
barrier,” insisting that the people would pay attention to its provisions and that it would place a
check in the hands of the judiciary. He dismissed Madison’s concern that a bill of rights might
omit vital provisions, declaring, “Half a loaf is better than no bread.” He even suggested to
another correspondent that the first nine states ratify the Constitution, but that the remaining four
hold out for a bill of rights; later, he endorsed the tactic followed by many ratifying states of
recommending amendments to be considered by the first Congress under the Constitution.
Drawing on Jefferson’s arguments, Madison became the leading sponsor of amendments in the
First Congress; in September of 1789, Congress proposed twelve amendments to the states, ten
of which (ratified in 1791) formed the Bill of Rights.
The other feature of the Constitution that Jefferson disliked was its abandonment of the
principle of rotation in office, particularly for the president, who, he fretted, might seek and win
re-election for life. The answer to his complaint came once the Constitution went into effect.
The first President of the United States, George Washington, imposed an unofficial limit of two
terms, which Jefferson, Madison, and Monroe reinforced by their examples.
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Though Jefferson was a clear-eyed observer of French affairs, he missed the warning
signals of a cataclysmic event – the French Revolution. In the summer of 1789, once the
Revolution was underway, he discreetly supported such friends as the Marquis de Lafayette,
allowing them to meet at his house and reviewing and revising their drafts of the French
Declaration of the Rights of Man and the Citizen. Though he risked compromising his status as
a diplomat, he believed himself obliged to advise the leaders of a democratic revolution, in many
ways the product of the American Revolution.
The plight of France prompted Jefferson to share with Madison his thinking about how
generations bind one another. Arguing that “the earth belongs in usufruct always to the living
generation,” he spun from this premise a series of deductions, including the idea that each
generation should make its own laws, neither bound by those of the generation preceding it nor
seeking to bind the generation following it. Madison answered that generations do not succeed
each other at regular nineteen-year intervals and pointed out ties of indebtedness and obligation
binding generations together. Jefferson remained unconvinced.
In late 1789, Jefferson returned to Virginia, to bring home his daughters, to arrange for
his elder daughter’s wedding, and to take a vacation from his duties in France. On arriving
home, however, he found an invitation from President George Washington, to become Secretary
of State in the government authorized by the Constitution. Jefferson accepted the appointment,
which meant the end of his service in France; he arrived in New York City, the nation’s
temporary capital, in May of 1790. Jefferson disliked the new nation’s political hub, in great
measure because, he believed, the disease of corruption had taken hold in America. Having been
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sensitized to fever pitch against European corruption and decadence, he took alarm at every sign,
no matter how slight, of similar problems arising in America.
Jefferson’s new post taught him to be a politician within the framework established by
the new Constitution of the United States. Though the story of his service as Washington’s
Secretary of State usually emphasizes his differences with his fellow Cabinet members, the first
major constitutional issue that Jefferson faced cast him as a diplomat and peacemaker rather than
as a controversialist. In January of 1790, Secretary of the Treasury Alexander Hamilton
proposed that the federal government assume state debts contracted to support the Revolution,
consolidate them with the Confederation’s debts, and use this consolidated debt as an engine to
spur economic growth and create a reliable American medium of exchange. Jefferson’s
diplomatic experience had convinced him that the nation needed to honor its debts; thus, when
Hamilton walked him back and forth for two hours in front of the president’s house while
expostulating on the need to break the deadlock in the House of Representatives stalling the
assumption bill, Jefferson sympathized. Acting as an honest broker, he hosted a dinner at which
Hamilton and Madison, the assumption bill’s leading opponent, reached a “dinner-table bargain.”
Madison would release two votes to allow the bill’s enactment; in return, the nation’s permanent
capital would be sited in Virginia, along the Potomac River.
More was at stake in the capital’s location than regional pride; Jefferson and Madison
believed that the capital’s site would help to define the nation’s character. A capital such as New
York or Philadelphia, where commerce and speculation were central concerns, would enable
commercial and speculating interests to shape the nation; by contrast, a capital in a rural
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Southern state would give agricultural interests the best chance to shape the nation. Having
extolled the idea of an agrarian republic, Jefferson saw this compromise of 1790 as a victory for
his point of view.
Later developments persuaded him otherwise, and he charged that Hamilton had misled
him. When in February 1791 Congress passed a bill devised by Hamilton to create a national
bank, Jefferson argued that Washington should veto the bill as unconstitutional. He submitted to
the president an opinion rejecting the bank bill’s constitutionality and establishing the classic
argument for “strict construction” of the Constitution. Jefferson insisted that the Constitution
had to be read strictly, limiting the federal government to powers explicitly granted to it.
Focusing on the Constitution’s the “necessary and proper” clause (Article I, section 8, clause 13),
Jefferson argued that “necessary” meant vitally necessary or crucial and “proper” meant required
by the Constitution. Thus, he concluded, a bill creating a national bank was neither “necessary”
nor “proper” and therefore unconstitutional. At Washington’s request, Hamilton drafted an
opinion answering Jefferson’s, presenting a bold, generous reading of the “necessary and proper”
clause and a classic case for broad construction of the Constitution. Countering Jefferson’s
arguments point by point, Hamilton insisted that, if a measure’s purpose is legitimate and its
means are not explicitly barred by the Constitution, then it is constitutional. Persuaded by
Hamilton, Washington signed the bank bill into law – in the process, fostering growing rivalry
between Hamilton and Jefferson.
This rivalry could not be contained within the Cabinet. Hamilton and Jefferson turned to
the press to wage their contest over the constitutional system’s future. Hamilton wrote for John
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Fenno’s Gazette of the United States, while Jefferson and Madison recruited the poet and
journalist Philip Freneau to launch the National Gazette. Clear distinctions came to separate
these “partisan alliances” (too diffuse and fragile and lacking sufficient professionalism and
discipline to deserve the name of “party”). Republicans favored strict construction of the
Constitution, a limited general government, an agrarian economy, and a foreign policy
supporting the egalitarian democratic ideology associated with the French Revolution.
Federalists favored broad construction of the Constitution, a vigorous general government, a
mixed economy including farming, commerce, and trade, and either neutrality in European
affairs or opposition to the radical, godless ideology of revolutionary France.
The French Revolution’s consequences for the 1778 treaty between France and the
United States, which had been vital to the American Revolution’s success, caused the next crisis.
War broke out in late 1792 between the French Republic and a coalition of conservative
monarchies led by Great Britain. The United States had to decide whether to renounce or to
stand by its alliance with France. The Cabinet divided on this issue, particularly on whether
Washington had the power to proclaim American neutrality or whether he had to secure
congressional approval for such a step. Again, Jefferson insisted on strict construction of the
Constitution, arguing that it did not give the president discretion in foreign policy, but again he
lost to Hamilton – though he did prevail in arguing that the 1778 treaty was still valid.
The arrogant posturing of Edmond Charles Genet, the French minister to America, posed
a further crisis – and more problems for Jefferson. Genet’s campaign for American support
showed increasing contempt for Washington; ultimately Genet appealed “from the President to
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the people.” After a balancing-act in which Jefferson tried to persuade Washington that he knew
nothing of Genet’s doings while bemoaning Genet’s recklessness to Madison, he backed the
administration’s demand that the French government recall Genet.
Jefferson was so frustrated by his battles with Hamilton that he sought to unleash a House
investigation of Hamilton’s stewardship of the Treasury Department. He drafted a set of
resolutions, introduced in the House by Representative William Branch Giles of Virginia,
attacking Hamilton’s conduct of Treasury business and demanding an inquiry. Jefferson hoped
that such an investigation would expose Hamilton’s corruption and force him to resign. Instead,
the House rejected Giles’s motion, and the plan failed. This series of defeats fed Jefferson’s
desire to leave the government; on January 5, 1794, he resigned and returned to Virginia. For
nearly three years, he plunged himself into private life, assuring his friends that he had embraced
the joys and peace of retirement – though he still kept a close eye on politics.
In September 1796, President Washington’s decision to retire at the end of his second
term ignited the first contested presidential election in American history. Jefferson allowed
Republicans in Congress to name him as their candidate; as his running mate, they recruited
Senator Aaron Burr of New York. The Federalists rallied behind Vice President John Adams
and the diplomat Thomas Pinckney of South Carolina. In the brief, bitter campaign, Federalists
attacked Jefferson for his alleged hostility to religion and his support of the French Revolution;
in turn, Republicans denounced Adams as a monarchist and a foe of liberty.
Under the original Constitution, presidential electors were to vote for any two men, at
least one of whom was not a resident of the elector’s home state. In 1796, Adams won by a
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narrow margin of 71 to 68; Jefferson thus became Adams’s Vice President. Jefferson
commented privately that he was happy with the result, as the second office was “honorable and
easy,” whereas the Presidency was nothing but “a splendid misery.”
Jefferson was a more successful Vice President than Adams had been; collegial and
reserved, he did not seek to intervene in Senate debates. In the course of his duties, he drafted a
manual of parliamentary practice based on his early studies of the subject, on the rules of the
Continental and Confederation Congresses, and on the practices of the House and the Senate.
Published in 1800, his Manual of Parliamentary Practice became a cornerstone work for both
houses of Congress and is still used today.
In 1798, Vice President Jefferson watched from the political sidelines in dismay as a
crisis between France and the United States led to a scandal that in turn touched off a greater
crisis. American diplomats sent to negotiate with France to ease the tense relations between the
two countries reported that their French counterparts had demanded bribes as the price of
negotiations. Not only did this XYZ Affair ignite an undeclared naval war with France –
Congress also enacted laws to combat alleged schemes of alien refugees backing the French
cause (the Alien Friends Act and the Alien Enemies Act) and to rein in critics of the Adams
administration (the Sedition Act). The last statute would expire on the last day of Adams’s term;
if he were re-elected, Congress would re-enact it, and if he were not re-elected, it no longer
would be available for a Republican administration to use against Federalist critics.
Deeming these statutes unconstitutional, Jefferson and Madison sought to organize
opposition to them. Working with the legislatures of Kentucky (Jefferson) and Virginia
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(Madison), they drafted resolutions challenging the measures’ constitutionality and invoking the
states’ authority against them. Jefferson’s Kentucky Resolutions took the more radical tack,
arguing that a state could declare a federal statute unconstitutional and therefore null and void
within its borders, giving rise to the doctrine of nullification. Madison’s Virginia Resolutions
took a more moderate course, proposing that Virginia interpose its authority between its citizens
and the disputed federal statute while asking the other states to consider the issue. Both men
sought to make federalism an additional check on the general government, and both were
disappointed when no other state joined their opposition to what they saw as an out-of-control
general government violating the Constitution.
At first, while the quasi-war was popular, the government prosecuted Republican printers
under the Sedition Act. (The statute omitted the Vice President from its list of protected
officials, so that Federalists could attack Jefferson with impunity.) As the war continued,
however, the prosecutions alienated voters, giving the Republicans hope that they could defeat
Adams in 1800. Again they nominated Jefferson and Burr; again the Federalists chose Adams,
this time with Charles C. Pinckney of South Carolina as his running-mate.
President Adams, who had become increasingly skeptical of the quasi-war, decided to
seek peace with France; his actions helped to split the Federalists, who could not maintain the
united front needed to prevail in the complicated process of electing a president. By contrast, the
Republicans exchanged pledges of honor to ensure that all Republican electors would vote for
Jefferson and Burr. The Republican victory in 1800 testified to the success of these pledges – but
posed a serious problem for the victors. Jefferson and Burr both received 73 electoral votes, with
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Adams at 65 and Pinckney at 64. The Jefferson-Burr tie required the lame-duck House of
Representatives, dominated by Federalists, to choose the president. In 1787, one framer of the
Constitution, George Mason of Virginia, had predicted that the Electoral College would never
choose a president, and that the House would pick the winner nineteen times out of twenty.
What had seemed expected in 1787-1788 became a shock in 1800, for in 1789, 1792, and 1796,
the Electoral College had picked a winner with no need for the House to act.
Compounding the problem were the attitudes of Jefferson’s supporters and of Burr.
Jefferson’s backers insisted not only that Burr defer to Jefferson, which he was willing to do, but
also that he declare himself not qualified to be President by comparison with Jefferson, which he
refused to do. Offended by what he deemed the Jeffersonians’ arrogance, Burr began to listen to
Federalist hints that they might back him as a compromise president. Rumors of these
discussions angered Jefferson’s supporters. After weeks of balloting, Jeffersonians and
Federalists worked out a face-saving compromise by which some Federalists cast blank ballots,
allowing Jefferson to win on the thirty-sixth ballot by a majority of the remaining state
delegations in the House.
From March of 1801 to March of 1809, Jefferson was the third president of the United
States – the second elected in a partisan contest for the nation’s highest office, and the first to
win a second term in a partisan contest. In his first term (1801-1805), one of the most successful
in American history, President Jefferson shaped the agenda of American politics in ways giving
him ample opportunity for constitutional creativity, and showcasing his mastery of the face-toface, informal politics by which he exerted firm yet indirect control over Congress. During his
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second term (1805-1809), he was more the prisoner than the shaper of events; at such times his
tendency to ideological inflexibility eclipsed his capacity for constitutional creativity, damaged
his popularity, and diminished his effectiveness.
Jefferson was certain that he and his supporters had launched a “Revolution of 1800” as
significant and far-reaching as the revolution of 1776. In particular, he was sure that the voters
shared his view that the Federalists had distorted the American constitutional system in the
interests of monarchism and aristocracy, and that he had won a mandate to put things right by
reversing Federalist policies and steering the constitutional system on a republican course.
Jefferson worked hard to make that vision a reality. He based his vision of the
presidency on what he understood George Washington’s conception of the office to be. Central
to that vision was consultation with his Cabinet. One example, seemingly insignificant then but
filled with meaning for posterity, was the need in 1802 to answer a letter from the Baptists of
Danbury, Connecticut, congratulating Jefferson on his election and pleading that he support them
in their confrontations with their state’s Congregational Federalist majority. Because
Republicans counted Baptists among their strongest supporters, Jefferson drafted the letter, but
he first had his cabinet review it. Their changes, which he adopted, left undisturbed his reading
of the First Amendment as establishing a “wall of separation between church and state,” but did
not commit his administration to overt action supporting the Danbury Baptists.
Consulting with his advisors and pursuing a clear vision of American development
undergirded two key policy initiatives exemplifying Jefferson’s constitutional creativity – the
Louisiana Purchase and the Lewis and Clark Expedition. Jefferson would have sent Lewis and
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Clark into the West in any event, justifying this display of national constitutional power as an
enterprise of scientific research, but a lucky development in American diplomacy removed the
potential danger posed by the expedition and strengthened its core purposes. Hoping to secure
the port of New Orleans for America, Jefferson had sent Robert R. Livingston to negotiate with
the regime of Napoleon Bonaparte. To Livingston’s astonishment, and that of his colleague
James Monroe, who had joined him in France, the French foreign minister, the comte de
Talleyrand, announced that Napoleon wanted to sell not just New Orleans but the entire
Louisiana Territory – a purchase that would double the size of the United States.
The tangled negotiations leading to the Louisiana Purchase raised a constitutional
challenge for Jefferson: Did the Constitution authorize a treaty for the purchase of land? Aware
that a significant minority of Jeffersonian Republicans in Congress and the state governments
thought not, Jefferson drafted five versions of a constitutional amendment to authorize treaties
for the purchase of land. Ultimately, however, recognizing that it would be impossible to amend
the Constitution in time to complete the treaty, Jefferson went ahead with the purchase and the
treaty. He justified his actions to disgruntled allies, arguing that he held his office as a trustee for
the people, wielding its powers in their service and for their benefit. They could ratify any
exercise of those powers that they approved, even if it seemed to clash with the Constitution by
exceeding the powers that that document granted to the government in general and the president
in particular. Re-electing Jefferson would constitute the people’s consent. Jefferson regularly
used public opinion as a source of presidential constitutional authority and a check on the
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exercise of that authority; his vision of a strong presidency in tune with the people’s will differed
from the top-down command model devised by Hamilton.
Having won election as a friend of liberty of the press and a foe of the 1798 Sedition Act,
Jefferson pardoned Republican printers convicted under that statute and remitted their fines. He
also worked with Republican governors Thomas McKean of Pennsylvania and George Clinton of
New York to have state authorities prosecute Federalist printers for the common-law crime of
seditious libel, which he argued was not barred by the First Amendment, which limited only the
power of the general government. These efforts to punish critics of his administration failed,
especially after Alexander Hamilton argued People of New York v. Harry Croswell (1804), his
last case before his death in a duel with Aaron Burr. The New York court accepted Hamilton’s
argument that publishing the truth for good motives was not sedition; this case marked the
practical end of the doctrine of seditious libel.
Jefferson’s first term was not an unalloyed success. He and his allies (in particular,
Treasury Secretary Albert Gallatin) were frustrated in their attempts to eliminate the national
debt and the Hamiltonian fiscal system built on it. Jefferson also felt keenly the failure of
Congressional Republicans to use impeachment to sweep Federalists from the federal bench –
though he carefully played no visible role in that effort. Jeffersonians resented the Judiciary Act
of 1801, enacted by a lame-duck Federalist majority, which seemed to create a refuge in the
federal courts for Federalists. Further, the appointments by President John Adams, confirmed by
the lame-duck Senate, of sixteen Federalists as circuit court judges and of John Marshall as the
new Chief Justice, rankled as much as did the statute authorizing the circuit courts. Jeffersonian
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Republicans spurned Federalist arguments that the redesigned judiciary was an overdue reform
relieving the Justices of the burden of riding circuit and creating needed judgeships to handle an
increasing federal caseload. They saw the “midnight judges” as a cabal bent on frustrating the
Jeffersonian agenda. To counter that cabal, the new Congress launched a two-prong assault on
the bench.
First, Congress enacted the Judiciary Act of 1802, repealing the 1801 statute and
restoring the judiciary to its original structure, abolishing the circuit courts and stranding the
judges who had been named to them. The 1802 statute also canceled the Supreme Court’s term
for that year, delaying the Justices’ hearing of any suit challenging the repeal.
The resulting controversy over the 1801 and 1802 Judiciary Acts led to two pivotal
decisions by the U.S. Supreme Court that, while claiming for the Court the versatile and
formidable power of judicial review of the constitutionality of federal measures, left the 1802
Judiciary Act in place and upheld congressional repeal of the 1801 Judiciary Act (and thus the
abolition of the “midnight judgeships”). In the last days of the Adams administration, John
Marshall was both Secretary of State and Chief Justice. As Secretary of State, he had the duty of
delivering judicial commissions to the new holders of federal judicial offices created by the 1801
Judiciary Act – but he failed to deliver all the commissions. His successor as Secretary of State,
James Madison, after consulting with President Jefferson, decided not to deliver the undelivered
commissions. One Adams appointee, William Marbury, filed suit in the U.S. Supreme Court for
a writ of mandamus – a judicial order requiring a government official to do his duty, in this case,
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to deliver the commission to Marbury. Marbury, named a justice of the peace for the District of
Columbia, needed his commission to act (to be able to collect fees).
Chief Justice Marshall seemed to be in a dilemma of his own making. If he issued the
writ against Madison, Madison could ignore the writ (with Jefferson’s backing) and the Court
would look ridiculous. If he said that he could not issue the writ against Madison, the Court
would look powerless. Marshall, however, devised a clever solution to the dilemma, which he
set forth in his opinion for the Court in the 1803 case of Marbury v. Madison.
Marshall asked and answered three questions. First -- did Marbury have a right to his
commission? Marshall answered that he had that right, and lectured Madison and by implication
Jefferson about Madison’s failure to perform the mechanical (“ministerial”) duty of delivering
the commission to an appointee duly nominated and confirmed to his office. Second – would a
writ of mandamus give Marbury what he wanted? Marshall answered that it would, and again
lectured Madison and Jefferson about their duty to perform those ministerial tasks associated
with their jobs. Third – would a writ issued by the Supreme Court give Marbury what he
wanted? Now Marshall reversed course, exploring the nature of judicial power under Article III
of the Constitution and under section 13 of the Judiciary Act of 1789, under which Marbury had
filed suit, and which authorized the Court to issue writs of mandamus. Marshall observed that
Marbury had begun his case in the Supreme Court, which meant that his case must fit within the
Court’s original jurisdiction. Noting that the Constitution did not include proceedings for a writ
of mandamus in the Court’s original jurisdiction, he read Section 13 as adding such proceedings
to the Court’s original jurisdiction. But, on this reading, Section 13 went beyond the maximum
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limits that the Constitution set on the Court’s original jurisdiction. Drawing on Alexander
Hamilton’s reasoning in The Federalist No. 78, Marshall argued that the Court had to uphold the
Constitution against any attempt by Congress to exceed the limits imposed by the Constitution.
He therefore struck down Section 13 as unconstitutional, and dismissed Marbury’s lawsuit
against Madison. By striking down Section 13 as unconstitutional (rather than rejecting
Marbury’s use of Section 13 as unconstitutional), Marshall made sure that Marbury could not
restart his litigation. Further, Marshall acted to deny that the Court had one kind of power, while
his method of doing so asserted and vindicated a far greater power held by the Court, that of
judicial review of the constitutionality of federal measures. Republicans were frustrated by the
creative brilliance of Marshall’s opinion, especially as, in a companion case, Stuart v. Laird, the
Court, speaking through Associate Justice William Paterson, upheld the 1802 Judiciary Act’s
abolition of the “midnight judgeships.”
The stage was thus set for Congressional Republicans to launch a second front in their
war against Federalist judges – a campaign to use impeachment against them. Their first target
was John Pickering, U.S. district judge for the district of New Hampshire. Pickering had been
named by George Washington to succeed the first federal district judge for New Hampshire,
John Sullivan, who had succumbed to senility and alcoholism; for the last two years of Sullivan’s
life, Congress transferred the district court’s caseload to the circuit court for New Hampshire.
Like Sullivan, Pickering fell prey to senility and alcoholism; by 1802 he could not carry out his
duties. Inability or maladministration never had been reasons for impeachment, as Federalists in
Congress argued. Even so, the House impeached Pickering, maintaining that judicial
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impeachment was merely an inquiry whether an office held by one man would not be better held
by another; the Senate convicted and removed Pickering from office.
The Republicans’ next target was Samuel Chase, a Federalist Associate Justice of the
Supreme Court whose conduct of federal seditious-libel trials in the late 1790s still provoked
Republican anger and resentment. (Had the Chase impeachment succeeded, Chief Justice John
Marshall would have been the next target.) The House impeached Chase, and he went on trial
before the Senate – where the plan went awry, due in great measure to Vice President Burr. For
a mix of political and principled reasons, Burr did not follow the Jeffersonian strategy. Instead,
he conducted Chase’s impeachment trial in accordance with precedents established for
impeachment trials in the British House of Lords. Presiding with dignity and fairness, Burr
persuaded the Senators that they were judges at a trial rather than participants in a political
process. The Senate thus acquitted Chase, scuttling the Jeffersonian drive to use impeachment to
remake the federal judiciary to their liking.
Jefferson’s second term was far rockier and unhappier than his first, casting him, against
his will, as a reactive president responding to events that he could not direct or control. Two
thorny constitutional crises arose in 1807 to bedevil him.
The first was Aaron Burr’s trial for treason. After his ouster from the 1804 Republican
ticket, his failed bid for governor of New York in June 1804, and his mortal wounding of
Alexander Hamilton in a duel provoked by that defeat, Burr realized that his political career was
wrecked. After leaving office on 4 March 1805, he headed to the “Old Southwest,” a region of
doubtful loyalty to the United States, mostly because its residents resented that the Union seemed
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to care little for their interests. They welcomed Burr as a hero and a man of honor, proposing to
him a war against Spain’s tottering American empire (either to add it to the United States or to
establish it as a separate nation under Burr’s leadership) and a disunionist project to detach the
southwestern states from the United States to form the core of a new nation. There is no
evidence that Burr gave these proposals more than a courteous hearing; he was willing to listen
to all plausible suggestions while keeping his own counsel. To Jefferson, Burr embodied the
gravest threat, that of a Caesar or Catiline seeking to gratify his ambition by waging war against
the republic. Determined to frustrate any such conspiracy, Jefferson kept Burr under close
watch.
In early 1807, federal authorities arrested Burr and brought him before the United States
Circuit Court for Virginia, where he was indicted for treason and other crimes against the United
States. Jefferson sent a special message to Congress reporting Burr’s arrest and alleging that his
guilt had been proved beyond question. He also sent U.S. Attorney George Hay, Burr’s
prosecutor, a stream of letters of advice and exhortation. Chief Justice Marshall, riding circuit,
was to preside over Burr’s trial. The proceedings became the focus of presidential – and national
– attention.
Burr’s trial posed two constitutional issues. The first was the meaning of treason. Burr
and his attorneys insisted that the narrow, precise definition of treason in Article 3, section 3 of
the U.S. Constitution meant what it said, and that the vague claims made by the prosecution
about Burr’s plans and intentions could not support prosecution for treason; the administration
had to prove an overt treasonous act, and this it had failed to do. The second issue was Burr’s
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attempt to force Jefferson to produce executive documents to aid Burr’s defense. Marshall ruled
that Jefferson had to obey a subpoena duces tecum (to produce documents), temporizing on the
question whether Jefferson would have to appear in court to answer the subpoena. Marshall
threw out some charges against Burr as unsupported by the evidence; on the treason count, the
jury returned a verdict of “not proven” – a result that dismayed Jefferson, who had wanted Burr
convicted, and Burr, who wanted the vindication of a “not guilty” verdict.
The second constitutional crisis of Jefferson’s second term started with the Chesapeake
incident, a byproduct of the war between Napoleonic France and the conservative alliance
against Napoleon led by Great Britain. As a neutral nation, the United States traded with both
warring powers; each raided American ships to interfere with its rival’s trade. Further, British
naval vessels enforced the Admiralty’s policy of recapturing deserters from the Royal Navy who
had taken berths on American ships. On June 22, 1807, the British warship H.M.S. Leopard, on
blockade duty off Chesapeake Bay, stopped the frigate U.S.S. Chesapeake and demanded to
search it for deserters. When Captain James Barron refused, the Leopard opened fire, crippling
the Chesapeake, killing three sailors, and wounding seventeen sailors and the captain. A British
boarding party then stormed the Chesapeake and removed four sailors.
The Leopard-Chesapeke affair ignited a firestorm of protest by the American people,
including demands for war, which Jefferson fended off. His preferred solution to the crisis,
however, carried a host of unanticipated problems and consequences. He imposed an embargo on
American trade with Great Britain and France; he and Secretary of State James Madison hoped
that an embargo would force both sides to end the war. He told each power that if it renounced
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future interference with American shipping, he would end the embargo for that country. France
made the needed declaration (but refused to honor it), but Britain did not – and so Jefferson lifted
the embargo on France but kept it in effect for Britain. Instead of forcing Britain to give in, the
embargo gravely damaged American commerce, particularly in New England and New York,
New Jersey, and Pennsylvania. Many American merchants and shipowners sought to evade the
embargo by all the techniques of smuggling familiar from the colonial past. To counter this
widespread defiance of American law, Jefferson imposed punitive enforcement measures
throughout the Northeast. These measures were as draconian as any British measure that he had
assailed in the Declaration of Independence. The embargo stayed in place until Jefferson
reluctantly lifted it, a few days before the end of his presidency.
On March 4, 1809, Jefferson left the presidency with unfeigned happiness and relief, he
assured his friends that he saw himself as a former prisoner freed of the “shackles of power.”
From the spring of 1809 to his death in 1826, he lived in retirement in Virginia, dividing his time
between Monticello and his retreat, Poplar Forest. Even so, he continued to follow politics,
serving as an unofficial senior advisor to Presidents James Madison and James Monroe.
Jefferson also developed the role of “ex-president” in American life. As “the sage of
Monticello,” he worked hard to shape his contemporaries’ and posterity’s views of his role in the
American Revolution, his political legacy, and his version of the early years of the American
republic. He still advocated his state-sovereignty vision of constitutionalism and promoted
efforts to revise the Virginia constitution of 1776 (a goal achieved four years after his death by
the 1830 Virginia constitutional convention). In his retirement’s most ambitious project, he
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founded a new university, the University of Virginia, aligned with no church or religious
position, which enshrined in its curriculum his constitutional vision.
Jefferson wrote letter after letter assuring friends, allies, and supporters that he was
through with politics. He never sought elective office, nor did he leave Virginia. Even so, he
remained an engaged political observer, advising his successors as president, Madison and
Monroe, and unfolding his thinking on constitutional and political questions in long, eloquent
letters, some to close friends, others to men and women whom he barely knew or had never met.
Now and then, such a private letter would leak to the press; then he suffered the usual
embarrassment of having views he expressed in confidence spread before the nation.
Perhaps Jefferson’s most famous statement on constitutionalism from his retirement was
his 1816 letter to Samuel Kercheval about constitutional reform, focusing on the need to revise
Virginia’s constitution of 1776. Kercheval had written a pseudonymous pamphlet and sent it to
Jefferson; in his response, one of his finest and most eloquent letters, Jefferson called for major
constitutional revisions on the basis of the idea that each generation ought to make its own laws
and craft its own form of government, a position that he had sketched nearly thirty years before
in a letter to Madison. Jefferson also argued for democratic apportionment of both houses of the
state legislature and for popular election of the governor; he even welcomed the idea of popular
election of judges, probably in reaction to the conservatism of Chief Justice John Marshall and
the U.S. Supreme Court and what Jefferson later termed its “twistifications” under Marshall’s
leadership. Unfortunately, Kercheval sought to use Jefferson’s private letter as a public
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campaign document, angering Jefferson, who insisted that he did not want to plunge into the
midst of a public controversy over constitutional revision.
Jefferson watched with alarm as a new generation of politicians grappled with the issues
of slavery posed by the new nation’s growth westward. Horrified by the Missouri crisis of 18191820, he attacked in private letters the compromise that resolved that crisis because it used the
federal government’s coercive power to limit the spread of slavery. He was not condoning or
championing slavery; rather, he was clinging to his vision of a Union held together by ties of
mutual interest and sentiment without need for federal coercive power.
The one purpose for which Jefferson re-entered Virginia politics was his arduous and
brilliant campaign to create the University of Virginia. Jefferson had long wanted to create such
a university, both as an alternative to his alma mater, the College of William and Mary, and as
the capstone of his 1779 bill to create a Virginian system of public education. Education was a
key component of his vision of a good society, furthering his belief in a healthy republic’s need
for an educated, well-informed citizenry.
Jefferson’s efforts began as early as 1810 and continued almost to the end of his life.
They included chairing the Rockfish Gap Commission and writing its report recommending the
creation of a university; securing state purchases of land near Monticello for the university’s
home; designing its buildings; hiring its faculty; and devising its curriculum, library, and reading
list. A central element of his plan for the university, which opened its doors in 1825, was its
curriculum on politics and government, which he wanted to teach his constitutional vision. He
required as central texts John Locke’s Two Treatises of Government, The Federalist,
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Washington’s 1796 Farewell Address, and the 1800 Report drafted by Madison for the Virginia
legislature distilling the controversy over the Alien and Sedition Acts of 1798 and the 1798
Virginia and Kentucky Resolutions. For a generation, graduates of the University of Virginia
absorbed his vision of state-sovereignty constitutionalism.
No writing from his last years illustrates Jefferson’s purposes more clearly than his last
public letter. On 24 June 1826, he answered a letter from Roger C. Weightman, the mayor of
Washington, D.C., inviting him to take part in the city’s festivities marking the fiftieth
anniversary of the adoption of the Declaration of Independence. Citing his age and failing health
as reasons why he could not accept the invitation, Jefferson nonetheless was determined to be
present at the ceremony by means of his written words. He therefore wrote to Weightman of his
assessment of the significance of the Declaration’s semi-centennial anniversary for all
Americans and for the wider world. The letter stands to this day as the ultimate expression of
Jefferson’s democratic constitutional faith:
“I should, indeed, with peculiar delight, have met and exchanged there congratulations
personally with the small band, the remnant of that host of worthies, who joined with us on that
day, in the bold and doubtful election we were to make for our country, between submission or
the sword; and to have enjoyed with them the consolatory fact, that our fellow citizens, after half
a century of experience and prosperity, continue to approve the choice we made. 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 & security of self-government.
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That form which we have substituted, restores the free right to the unbounded exercise of reason
and freedom of opinion. All eyes are opened, or opening, to the rights of man. The general
spread of the light of science has already laid open to every view, the palpable truth, that 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. These are grounds of hope for
others. For ourselves, let the annual return of this day forever refresh our recollections of these
rights, and an undiminished devotion to them.”
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