Introduction

Thomas Jefferson might have been expected to play an important role in the debates at the Constitutional Convention, but at the time they took place, he was serving as Ambassador to France. He depended on Madison to keep him abreast of progress on the new frame of government.

In the first letter excerpted below, sent during the campaign for ratification, Jefferson gives his views on the proposed Constitution. He warmly compliments many features of the plan, appearing particularly pleased by the unexpected compromise achieved in the argument between small and large states over representation in Congress. But then, more importantly, he indicates what “I do not like,” namely, “the omission of a bill of rights,” and the absence of any provision to insure that elected officials not serve indefinitely — what today we would call “term limits.”

In the second letter, Madison responds to Jefferson’s challenge about the absence of a bill of rights. He states he is in favor of it primarily because others seem to think it necessary (implying that the addition of a bill of rights might help to insure ratification of the Constitution). However, he acknowledges that such an addition to the Constitution “might be of use, and if properly executed could not be of disservice.” Then he notes the ways in which a bill of rights would have to be designed with particular care so as to achieve its desired purposes.

In the third letter, Jefferson provides a detailed response to Madison’s comments on the possible dangers of adding a bill of rights to the Constitution. He ends the letter on an optimistic note: “I am much pleased with the prospect that a declaration of rights will be added; and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it.”


Source: Gordon Lloyd and Margie Lloyd, eds., The Essential Bill of Rights (Lanham, Maryland: University Press of America, 1998) 320, 325-328, 329-331.


Jefferson to Madison: Paris, December 20, 1787

. . . . The season admitting only of operations in the Cabinet, and these being in great measure secret, I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the Constitution proposed by our Convention. I like much the general idea of framing a government which should go on itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes and for that reason solely approve of the greater house being chosen by the people directly. For though I think a house chosen by them will be very ill qualified to legislate for the Union, for foreign nations, etc. yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that voting by states: and I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate power. There are other good things of less moment.

I will now add what I do not like.

First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies,[1] the eternal and unremitting force of the habeas corpus law,[2] and trials by jury in all matter of fact triable by the laws of the land and not by the law of Nations.[3] To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved[,] might do for the Audience to whom it was addressed,[4] but is surely gratis dictum,[5] opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium,[6] those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.

The second feature I dislike, and greatly dislike, is the abandonment in every instance of the necessity of rotation in office, and most particularly in the case of the President. Experience concurs with reason in concluding that the first magistrate will always be re-elected if the constitution permits it. He is then an officer for life. This once observed[,] it becomes of so much consequence to certain nations to have a friend or a foe at the head of our affairs that they will interfere with money and with arms. A Gallo man or an Anglo man will be supported by the nation he befriends. If once elected, and at a second or third election outvoted by one or two votes, he will pretend false votes, foul play, hold possession of the reins of government, be supported by the states voting for him, especially if they are the central ones lying in a compact body themselves and separating their opponents; and they will be aided by one nation of Europe, while the majority are aided by another. The election of a President of America some years hence will be much more interesting to certain nations of Europe than ever the election of a king of Poland was. Reflect on all the instances in history ancient and modern, of elective monarchies, and say if they do not give foundation for my fears[:] the Roman emperors, the popes, while they were of any importance, the German emperors till they became hereditary in practice, the kings of Poland, the Deys of the Ottoman dependencies. It may be said that if elections are to be attended with these disorders, the seldomer they are renewed the better. But experience shows that the only way to prevent disorder is to render them uninteresting by frequent changes. An incapacity to be elected a second time would have been the only effectual preventative. The power of removing him every fourth year by the vote of the people is a power which will not be exercised. The king of Poland is removable every day by the Diet, yet he is never removed. . . .

I have thus told you freely what I like and dislike: merely as a matter of curiosity for I know your own judgment has been formed on all these points after having heard every thing which could be urged on them. I own I am not a friend to a very energetic government. It is always oppressive. The late rebellion in Massachusetts[7] has given me more alarm than I think it should have done. Calculate that one rebellion in 13 states in the course of 11 years is but one for each state in a century and a half. No country should be so long without one. Nor will any degree of power in the hands of government prevent insurrections. France with all its despotism, and two or three hundred thousand men always in arms, has had three insurrections in the three years I have been here in every one of which greater numbers were engaged than in Massachusetts and a great deal more blood was spilt. . . .

After all, it is my principle that the will of the Majority should always prevail. If they approve the proposed Convention in all its parts, I shall concur in it cheerfully, in hopes that they will amend it whenever they shall find it work wrong. I think our governments will remain virtuous for many centuries; as long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America. . . .

Above all things I hope the education of the common people will be attended to; convinced that on their good sense we may rely with the most security for the preservation of a due degree of liberty. . . .

Madison to Jefferson: New York, October 17, 1788

. . . . The little pamphlet herewith enclosed will give you a collective view of the alterations which have been proposed for the new Constitution. Various and numerous as they appear they certainly omit many of the true grounds of opposition. The articles relating to Treatises, to paper money, and to contracts, created more enemies than all errors in the System positive and negative put together. It is true nevertheless that not a few, particularly in Virginia have contended for the proposed alterations from the most honorable and patriotic motives; and that among the advocates for the Constitution there are some who wish for further guards to public liberty and individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety.

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.[8] At the same time I have never thought the omission a material defect nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice.

I have not viewed it in an important light 1. Because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson,[9] the rights in question are reserved by the manner in which the federal powers are granted. 2. Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to the public definition[,] would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews, Turks and infidels. 3. Because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. Because experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience it is well known that a religious establishment would have taken place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression.

In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the majority of the constituents. This is a truth of great importance, but not yet sufficiently attended to: and is probably more strongly impressed on my mind by facts, and reflections suggested by them, than on yours which has contemplated abuses of power issuing from a very different quarter. Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful and interested party than by a powerful and interested prince. The difference, so far as it relates to the superiority of republics over monarchies, lies in the less degree of probability that interest may prompt abuses of power in the former than in the latter; and in the security in the former against oppression of more than the smaller part of the Society, whereas in the former [Madison seems to have erred, writing “former” when he meant “latter” — ie., in monarchies] it may be extended in a manner to the whole. The difference so far as it relates to the point in question — the efficacy of a bill of rights in controlling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing and uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and consequently the tyrannical will of the sovereign is not to be controlled by the dread of an appeal to any other force within the community.

What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following, which, though less essential than in other Governments, sufficiently recommend the precaution. 1. The political truths declared that in solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Although it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may by gradual and well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our governments to danger on that side. It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it in my opinion applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power; and that the line which divides these extremes should be so inaccurately defined by experience.

Supposing a bill of rights to be proper, the articles which ought to compose it admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp.[10] be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighborhood by Britain or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security against these evils is to remove the pretext for them.

With regard to Monopolies, they are justly classed among the greatest nuisances in Government. But is it clear that as encouragements to literary works and indigenous discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger cannot be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many. . . .

Jefferson to Madison: Paris, March 15, 1789

. . . . Your thoughts on the subject of the declaration of rights in the letter of October the 17th, I have weighed with great satisfaction. Some of them had not occurred to me before, but were acknowledged just in the moment they were presented to my mind. In the arguments in favor of a declaration of rights, you omit one which has great weight with me; the legal check which it puts into the hands of the judiciary. This is a body, which, if rendered independent, and kept strictly to their own department, merits great confidence for their learning and integrity. In fact, what degree of confidence would be too much, for a body composed of such men as Wythe,[11] Blair,[12] and Pendleton?[13] On characters like these, the “civium ardor prava jubentium”[14] would make no impression. I am happy to find that, on the whole, you are a friend to this amendment. The declaration of rights is, like all other human blessings, alloyed with some inconveniences, and not accomplishing fully its object. But the good of this instance vastly overweighs the evil. I cannot refrain from making short answers to the objections which your letter states to have been raised.

  1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer: A constitutive act may, certainly, be so formed, as to need no declaration of rights. The act itself has the force of a declaration, as far as it goes; and if it goes to all material points, nothing more is wanting. In the draught[15] of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed; but the deficiencies would have been supplied by others, in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary, by way of supplement. This is the case of our new federal Constitution. This instrument forms us into one State, as to certain objects, and gives us a legislative and executive body for these objects. It should, therefore, guard us against their abuses of power, within the field submitted to them.
  2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer: Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.
  3. The limited powers of the federal government, and jealousy of the subordinate governments, afford a security which exists in no other instance. Answer: The first member of this seems resolvable into the first objection before stated. The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them, whereon to found their opposition. The declaration of rights will be the text, whereby they will try all the acts of the federal government. In this view, it is necessary to the federal government also; as by the same text they may try the opposition of the subordinate governments.
  4. Experience proves the inefficacy of a bill of rights. True. But though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniencies which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniencies of the want of a declaration are permanent, afflicting and irreparable. They are in constant progression from bad to worse. The executive, in our governments, is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn; but it will be at a remote period.

I know there are some among us, who would now establish a monarchy. But they are inconsiderable in number and weight of character. The rising race are all republicans. We were educated in royalism; no wonder if some of us retain that idolatry still. Our young people are educated in republicanism; an apostasy from that to royalism, is unprecedented and impossible. I am much pleased with the prospect that a declaration of rights will be added; and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it. . . .

Study Questions

A. Did either Madison or Jefferson change his mind about a bill of rights as a result of this exchange? Do they approach the question with the same or with different priorities in mind? In the end, do they agree or disagree on the centrality of a bill of rights to securing republican liberty?

B. Between his exchange of letters with Jefferson and his June 8 speech to Congress, how did Madison’s views on the need for a bill of rights develop? Compare the Jefferson-Madison exchange over the inclusion of a bill of rights that is consistent with the Constitution drafted by the Framers with Madison’s June 8 speech to Congress and Washington’s First Inaugural Address.

Footnotes

  1. Jefferson is most likely referring to commercial monopolies established by governments, as was the British East India Company, which was founded by royal charter in 1600. He may not have foreseen the possibility that business monopolies could arise independently of government sanction.
  2. The Latin term habeas corpus translates roughly as “You may have the body.” A writ of habeas corpus is a court order commanding a government official who is holding a prisoner to bring the prisoner into a court of law, where the legality of his imprisonment can be determined. In short, the habeas corpus law forbids holding anyone prisoner without trial.
  3. In a letter to Madison on August 28,1789, Jefferson details what he means by “cases triable . . . the Law of Nations”: cases involving foreigners, court martial cases during a time of war or insurrection, and impeachments of government officials as allowed by the Constitution (Memoirs, correspondence and private papers of Thomas Jefferson, ed. Thomas Jefferson Randolph (London: Henry Colburn and Richard Bentley, 1829),Volume 3, p. 26 (retrieved through Google ebooks).
  4. James Wilson, a Pennsylvania delegate to the Constitutional Convention, gave a speech on October 6, 1787 in the Pennsylvania statehouse to a friendly crowd, attacking the Antifederalists and asserting that the Constitution reserves to the states all powers that are not specifically enumerated as belonging to the federal government.
  5. a saying made voluntarily that is not legally binding
  6. Jefferson uses the word “palladium” to mean “safeguard.” The word referred originally to a statue of Pallas Athena erected in Troy and on which the safety of the city was believed to depend.
  7. Jefferson refers to Shays’ rebellion, a series of armed protests by farmers who were losing their lands because they could not repay loans on them.
  8. By “the enumeration,” Madison means the powers explicitly given to the federal government by the Constitution.
  9. James Wilson of Pennsylvania
  10. habeas corpus law
  11. George Wythe of Virginia
  12. John Blair of Virginia
  13. Edmund Pendleton of Virginia
  14. Jefferson quotes Horace: “the wild fury of one’s fellow citizens ordering evil measures to be pursued.”
  15. draft