Editor’s note: This piece originally ran as a five part series at The Independent Institute.
Just a month ago, National Review (the supposed Gray Lady of the Right) ran a piece by Yale’s Akhil Reed Amar entitled Declaring Independence from Thomas Jefferson. The piece is a paean to centralized power imbued with presentism as Amar virtue signals and plays the role of Pied Piper as “conservative” lawyers and academics follow him to the land of the living Constitution. Amar is a staunch progressive, yet when one views his biography and list of engagements from the Federalist Society, one is left with the impression that he is some sort of conservative/originalist hero. I have no problem when the Federalist Society brings him in as the progressive voice in a debate with a conservative scholar, but in most of the FedSoc events, he is the only speaker and is selling his latest book. I’ve personally attended a FedSoc National Lawyer’s Convention and witnessed idolatrous worship of Amar and his work. In this post—focusing on his latest article at NR—I hope to show why lawyers and academics should divorce themselves from Amar and stuff cotton in their ears when the Pied Piper plays.
Amar challenges Jefferson’s constitutional thought and states that it was “far less impressive than that of Washington, Hamilton, and Chief Justice John Marshall.” In making this argument, Amar emphasizes Hamilton’s plan to charter a national bank, which Amar describes as a “perfectly valid federal action.”
Let us set the stage. In 1791, Secretary of the Treasury Hamilton recommended that Congress establish a national bank. Hamilton described the bank as “an institution of primary importance to the prosperous administration of [national] finances, and would be of the greatest utility in the operations connected with the support of public credit.” Hamilton informed Congress that the “most enlightened commercial nations” had established national banks and that the United States should follow suit.
Hamilton recommended a bank with $10 million in capital and 25,000 shares of stock. Private investors would own 20,000 shares, with the national government holding the remainder. The bank would issue its own notes in excesses of its assets and thus engage in fractional reserve banking. Hamilton believed that gold and silver should not be a means of paying private debts and hoped that the country’s specie would be collected in the vaults of the national bank. Paper money would circulate while the gold and silver collected interest and buttressed the bank’s power.
Hamilton’s bank idea ignited an impassioned debate in the House of Representatives. Southerners charged that the bank would benefit the mercantile interest centered in the North while doing nothing for the yeoman farmers. They also questioned its constitutionality. Even if a national bank would be conducive to the union’s financial health, whence, they asked, did the power to charter this corporation come?
To answer that question, the bank’s proponents advanced remarkably broad theories of constitutional interpretation on the floor of Congress. Fisher Ames of Massachusetts opined, “Congress may do what is necessary to the end for which the constitution was adopted.” And just what were the ends? According to Theodore Sedgwick, who also represented Massachusetts, “the public good and general welfare” were the ultimate ends. Elbridge Gerry concurred with his neighbors from Massachusetts and pointed Congress to the preamble of the Constitution. He observed that providing for the common defense and general welfare were the great objects of the Constitution and should guide the interpretation of the enumerated powers. John Lawrence of New York argued that nothing in the Constitution expressly forbade a bank and declared that “we ought not to deduce a prohibition by construction.”
Congressman James Madison was shocked as he listened to his colleagues’ arguments. The construction put forward, Madison alleged, would destroy the system of enumerated powers crafted in Philadelphia. Madison reminded his fellow representatives that the Philadelphia Convention had, in fact, considered enumerating the power of incorporation but decided against delegating such a power to Congress. He reminded them that if no powers pertaining to creating a national bank had been enumerated, then the bank had to be necessary and proper for carrying out one of the listed powers. To the extent that an enumerated power could be cited, Madison said that the Necessary and Proper Clause must be interpreted “according to the natural and obvious force of terms and the context” and thus “be limited to the means necessary to the end, and incident to the nature, of the specified powers.” Remote implications of constitutional language should not be relied upon, Madison warned the Congress, or else the national government may “reach every object of legislation.”
Despite Madison’s criticism, Congress passed the bank bill and sent it to President Washington for his signature. Washington, however, was uncomfortable with the legislation and asked Attorney General Edmund Randolph and Secretary of State Thomas Jefferson to offer opinions on the bill. Both Randolph and Jefferson believed that the bill was unconstitutional. Randolph’s thoughts were summed up in the penultimate paragraph of his opinion: “let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction, which they arrogate will not terminate in an unlimited power in Congress.”
In his response, Jefferson began with the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Jefferson described the amendment as the foundation of constitutional interpretation. “To take a single step around the powers of Congress,” he warned, “is to take possession of a boundless field of power, no longer susceptible of any definition.” Jefferson examined the enumerated powers and concluded that all of them could be executed without creating a bank. Jefferson acknowledged that the bank might make collecting taxes more convenient, but he denied that convenience and necessity were synonyms. The word “necessary,” in Jefferson’s view, restrained the national government “to those means, without which the grant of power would be nugatory.”
The opinions of Randolph and Jefferson certainly worried Washington. As he mulled the matter, he asked Hamilton to offer his opinion on the bank’s constitutionality. After studying Randolph’s and Jefferson’s opinions, Hamilton complied and asserted that the analysis of his cabinet colleagues “would be fatal to the just and indispensable authority of the United States.” A means was necessary, according to Hamilton, so long as it was useful or helpful to the exercise of a delegated power. “If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution,” Hamilton reasoned, “it may safely be deemed to come within the compass of the national authority.”
Impressed with Hamilton’s arguments, Washington signed the bank bill into law.
This was a grave error. In the words of the great Virginia judge Spencer Roane, “[t]hat man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.” Nationalists eager to augment the enumerated powers of Congress have given the Constitution’s Necessary and Proper Clause an extensive interpretation that denigrates from the promise of a limited government. The genie of loose constitutional construction was let out of the bottle in the bank debate, and we have been unable to recapture it. Hence, we have an omnipotent Congress that has long ago shed itself of the careful enumeration of powers.
Yes, Jefferson and his colleagues lost the fight in Congress and with President Washington. But to portray Jefferson and his allies as eccentric cranks who unnecessarily opposed a “perfectly valid federal action” is disingenuous. There were strong arguments against the bank. Amar, however, glosses over the very reasonable Jeffersonian position as he plays the tune of big government congruent with the modern state’s worst excesses.
Amar also finds fault with Jefferson because “[h]e fathered the false idea that each state could legitimately ‘nullify’ a federal law on its own say-so (as distinct from sounding political alarms against unconstitutional federal actions, filing lawsuits, or doing other things that ultimately relied on national legal and political dispute-resolution mechanisms).”
Amar ignores the history of the American Revolution and how Jefferson’s ideas about ‘nullification’ were at the heart of the colonies’s dispute with Parliament. In 1774, as the delegates traveled to Philadelphia for a meeting of the Continental Congress, they certainly contemplated the various local resolutions and newspaper essays offering suggestions on the goals and directions of a congress. In addition, many of the delegates were familiar with more widely circulated pieces such as Thomas Jefferson’s Summary View of the Rights of British America. The Summary Review, most historians agree, provides a snapshot of the forward-thinking patriot mindset as the First Continental Congress convened.
Jefferson’s Summary View was initially written as proposed instructions to Virginia’s delegates but was published as an essay in August 1774. Jefferson urged a “humble and dutiful” address to the king, protesting the “unwarrantable encroachments and usurpations” of Parliament. Such an address would make clear that George III was the “central link” of the British Empire in his executive office. In this capacity, Jefferson urged the king to recognize that the colonies were outside the jurisdiction of Parliament and should be governed by their own duly elected legislatures. Jefferson went so far as to describe Parliament as “a body of men foreign to our constitutions” bent on causing “further discontents and jealousies among us.” Hence, Jefferson entreated the king to exercise his veto power to protect the colonies from the encroachments of Parliament. Of course, Jefferson did not give George III a free pass but also complained that the king had left the colonists to the intrigues of evil ministers and parliamentarians.
Further, Jefferson chastised the king for acting outside his authority in many instances, such as sending armies to America without the consent of the people. Jefferson implored the king to “[l]et no act be passed by any one legislature, which may infringe on the rights and liberties of another.” But the king was not necessary to nullify the many offending acts of Parliament. Jefferson was unequivocal: “The true ground on which we declare these acts void is, that the British parliament has no right to exercise authority over us.” Thus, nullification was at the heart of the American Revolution.
Based on this history, it is no surprise that when Jefferson saw the American Congress disregarding the Constitution’s careful enumeration of powers, he recalled the colonial dispute with Parliament. When Congress passed and President Adams signed the Alien and Sedition Acts, Jeffersonians understood that loose constitutional interpretation had been put into another gear. The Sedition Act made criticism of the national government a crime. It permitted the president to deport—with no due process—aliens he deemed dangerous. This legislation threatened the right to self-government because the people had delegated, for example, no power to Congress to legislate regarding speech. In fact, the First Amendment specifically prohibits Congress from legislating on that subject.
As for the remedy, in the Kentucky and Virginia Resolutions, Jefferson and Madison pointed to nullification and interposition, whereby they declared the Acts void and of no force. In his draft of the Kentucky Resolution, Jefferson posited that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”
Americans should be thankful that during the American Revolution, Jefferson dared to do more than sound a political alarm against Parliament’s statutes, file a lawsuit, or work within the British “legal and political dispute-resolution mechanisms.” They should also be thankful that Jefferson returned to his revolutionary roots in 1798 and offered nullification as a remedy for the Alien and Sedition Acts.
Jefferson’s and Madison’s Resolutions stirred the American people and resulted in the Federalists being tossed out of office in the next election. In the so-called “Revolution of 1800,” the Jeffersonian Republican Party won a 24-seat majority in the House of Representatives and Jefferson was elected to the presidency. Upon taking office, Jefferson suspended all pending prosecutions under the Sedition Act and pardoned those convicted under the unconstitutional Act.
Of course, to properly understand nullification, one must appreciate not just the Summary View but the nature of the union and the locus of ultimate sovereignty.
Amar then blasts Jefferson on secession by writing: “He played footsie with the plainly unconstitutional idea that a state could unilaterally secede. (At one point he nonchalantly declared that whether America remained united or instead divided into two parts was “not very important” to American ‘happiness.’ Jefferson Davis was aptly named.).”
As an initial matter, secession is an American political concept. Our country was formed in a secession from Great Britain. The united states sought to remove themselves from the jurisdiction of the British Crown and Parliament. Thus, secession was in the blood of the revolutionary generation—they participated in secession. Even if Amar were to concede my description of the break with Britain, he would undoubtedly fall back on the Constitution and argue that secession is not recognized in the document.
Let’s look at the messages from several ratification conventions to judge the original intent on this matter. Virginia’s ratification message declared as follows: “the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.” Rhode Island averred that “the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.” New York also made it known that “the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness.” In the Virginia ratifying convention, Edmund Pendleton (a supporter of the Constitution) assured Anti-Federalists that if the national government proved oppressive, Virginia could take action in convention: “we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.” These are just a few examples, but show that secession was not a “plainly unconstitutional idea” to the ratifiers of the Constitution.
The Constitution was not submitted to one national convention but to individual state conventions. In the Philadelphia Convention, Gouverneur Morris moved for a single national convention, but no delegate seconded the proposal even to allow its discussion. Separate state conventions, the framers realized, were necessary for ratification because the people of each state, in adopting the Constitution of 1787, also were amending their state constitutions. For instance, to the extent that a state constitution granted the legislature the power of regulating trade with foreign nations, sister states in the union, and Indian tribes, the people of the state had to reassume that power and then confer it on the general government. No one other than the people of a state themselves could do so. Accordingly, the states as political societies in their highest sovereign capacities are the parties to the constitutional compact.
According to Madison in the Report of 1800, the states (i.e., “the people composing those political societies in their highest sovereign capacity”) are the parties to the compact that is the Constitution. Although consolidationists such as Amar have urged that the people of the entire United States and not of the several states are the ratifiers of the Constitution of 1787, the mode of ratification is incongruent with this argument. Consolidationists also ignore that when the general government began operation, two states (North Carolina and Rhode Island) were outside of the union and remained outside until the conventions in those states voted to accept the Constitution. Had the amalgamated “American people” been the parties to the compact, North Carolina and Rhode Island would have never been outside the union because a supermajority of the American people had adopted the Constitution.
Based on our secession from Great Britain, the state ratification messages and debates, and the mode through which the Constitution was ratified, the idea of secession is not “plainly unconstitutional.” Sure, Amar could argue that Appomattox settled the issue, but his essay criticizes Jefferson for believing in secession. Jefferson died in 1826, and thus, “developments” such as Appomattox or Texas v. White (1868) cannot be applied against him.
Finally, Amar posits that the results of secession would render America “unhappy” and that happiness is only achievable in a continental union. Actually, the opposite is true. We would not be at each other’s throats in making public policy if, say, we had a Left Coast Confederacy, a Northern Confederacy, a Midwestern Confederacy, and a Southern Confederacy. Different regions could handle abortion, immigration, the death penalty, and other volatile issues in accordance with the temperament and values of the different peoples. This would exponentially contribute to happiness and political health if we could dispense with the continental winner-take-all system.
My argument is rather than jettisoning Thomas Jefferson as Amar demands, we should ditch Amar, who is a darling of the Federalist Society and has no trouble persuading the “conservative” editors at NR to give him space. Amar’s popularity among Conservatism, Inc., to borrow a term from Paul Gottfried, is a symptom of why the right is content to simply follow the left and occupy the ground that the left abandons as it moves in a more radical direction.
Amar asserts that Jefferson was a January Sixer whose very existence posed a danger to ordered liberty. Amar frames the matter here: “He came perilously close to urging his backers to march on Washington with guns to bully Congress into handing him the presidency in the contested election of 1800–01. (Shades of January 6!).”
To respond to this allegation, some context is required. Once George Washington retired from public service, the Federalist and Jeffersonian Republican parties wrestled for control of the national government. Serious flaws were exposed in the constitutional mechanism for choosing a president and vice president. In the 1796 election, Federalist John Adams won 71 electoral votes to Republican Thomas Jefferson’s 68. Jefferson became Adams’s vice president, and tensions mounted because the two men held irreconcilable views of constitutional construction, foreign policy, and the development of the United States.
In the following presidential election, matters became more complicated despite a bitter campaign and Federalist assertions that a vote for Jefferson was a “sin against God.” Jefferson and Aaron Burr (who was viewed by Republicans as their vice presidential candidate) tied with 73 electoral votes each. Adams received 65 electoral votes, and Charles Pinckney (viewed by the Federalists as Adams’ vice presidential candidate) received 64. (Note that presidential electors could not designate which of their two votes was for president and vice president under the original Constitution. The 12th Amendment ultimately cured this defect.) The tie between Jefferson and Burr could have been avoided had one elector voted for someone other than Burr. But electors feared that the election would be close, and Republican electors thus were understandably skittish about throwing away votes. The tie resulted in the presidential election being thrown to the House of Representatives—and this was not the newly elected House, which was solidly Republican, but the lame-duck House that had passed the Alien and Sedition Acts.
Federalists in the House were determined to prevent a Jefferson presidency. They therefore cast their votes for Burr to prevent Jefferson from receiving the votes of a majority of the states. A deadlock ensued for multiple votes. The tide turned when Republican Samuel Smith informed Federalist leaders that Jefferson was not inclined to dismiss Federalist civil service members for political reasons. Upon hearing that news, James Bayard, Delaware’s sole representative, urged his fellow Federalists to relent. On the thirty-sixth ballot, Federalist congressmen from Maryland and Vermont declined to vote, an act that shifted these two states toward Jefferson’s column. South Carolina and Delaware abstained, and Jefferson was elected to the presidency.
While it is true that Pennsylvania’s Governor McKean concocted a plan to march militia units on Washington, D.C., if the Federalists stole the election from Jefferson, McKean was acting alone. Jefferson’s future Treasury Secretary and confidant Albert Gallatin wrote to Virginia’s Governor James Monroe that he hoped rumors of the people picking up arms and preparing to march were untrue because “anything [like] a commotion would be fatal to us.” In other words, Jefferson and his inner circle realized that if hotheads undertook violent measures, this would hurt the Republican cause and likely end all arguments that the House should elect Jefferson to the presidency. Jefferson did not resort to violence but gave in to Federalist extortion and promised he would not fire all Federalist members of the civil service.
Although Amar desires to paint Jefferson as the Q-Anon Shaman, nothing could be further from the truth. Amar’s kindred spirits—rather than yield to the voice of the people—extorted a deal to preserve the Federalist deep state in exchange for ratifying the sentiments of the people and their electors. If anyone should be castigated for their conduct in the 1800 election, it should be the Federalists in the House and not Thomas Jefferson.
After challenging Jefferson’s constitutional thought, Amar could not resist denouncing Jefferson as an evil slaveholder. This is nothing but pure presentism and paints the American experience with slavery as unique when, in fact, slavery has been a universal human institution. (See my article The Bad Theology of America’s “Original Sin”). Amar also ignores that it was President Jefferson who urged Congress to act to end the transatlantic slave trade. In December 1806, in his sixth annual message to Congress, President Jefferson reminded the legislators of “the approach of the period at which you may interpose your authority constitutionally, to withdraw the citizens of the United States from all further participation in those violations of human rights” bound up in the international slave trade.
Although no law banning the trade could take effect until 1808, Jefferson averred that early action by Congress might prevent further expeditions that could not be completed before the new statute’s effective date. Congress acted on Jefferson’s suggestion, and on New Year’s Day, 1808, the importation of African slaves into the United States was banned. Thus, the United States was among the first Western countries to abolish the slave trade. Only Denmark (1792) and Great Britain (1807) took action before the United States.
Amar accuses Jefferson of lustfulness and states matter-of-factly: “He was also the father of several slave children with his slave mistress, Sally Hemings.” He then asks: “What are we to make of a man who enslaved his own children?” There is no conclusive DNA proof that Jefferson fathered a child by Hemings. Any of Jefferson’s male-line relatives are candidates. As Lance Banning has pointed out, Jefferson’s younger brother, Randolph Jefferson, “was known to dance and play his fiddle with the slaves” and is the likely candidate. I also recommend “Tom and Sally and Joe and Fawn,” in which Egon Richard Tausch points out how historians have mischaracterized the DNA evidence. In sum, it is reckless to state that Jefferson, as a conclusive factual matter, had relations with Hemings.
So why does Amar really desire to declare independence from Thomas Jefferson? He tells us in his final paragraph. We need to pay “tribute to more-admirable Founding Fathers” such as Washington and Hamilton as well as “America’s great Refounding fathers and mothers, such as Abraham Lincoln, Frederick Douglass, Charles Sumner, Elizabeth Cady Stanton, and Harriet Beecher Stowe—men and women who rejected Jefferson’s worst ideas, embraced his best ideas, and made them better still.”
In other words, Amar wants Americans to worship at the altar of Lincoln, the centralized state he engendered, and the modern federal government that is without limits. If Jefferson is allowed admiration, the people might become familiar with the early Republic’s scheme of limited government with carefully enumerated powers, the states serving as a check on the general government, and citizens living independent of the whims of Washington, D.C.’s managerial class. They might come to realize that most of what the federal government does is ultra vires. Armed with such knowledge, the people might start questioning the omnipotent state that Amar and his fellow liberal Democrats have invested in. Hence. we have a hatchet job aimed at preserving the current order.