Political institutions not exact systems as are geometrical “systems” such as Euclidean geometry and its alternatives, Lobachevskian (hyperbolic) and Riemannian (elliptical) geometries. Hence, the principles of any constitution cannot be taken, as they often are, as axiomata as they are in geometries. They are, however, philosophically based: both on the nature of humans and the best life for humans, given human nature.
Yet there has been no general agreement among scholars over the centuries on the nature of humans, and so, no general agreement among scholars on the best life for humans. Even Aristotle (384–322 BC) who thought that humans were by nature “political” and “rational” animals, did not think that there could be one “constitution” (politeia) suitable for all people. Geography, available nutriment, and climate factored into any constitution. A constitution suitable for a people in a wet, elevated, and cold climate was unsuited for a people in an arid, flat, and hot climate. Aristotle’s view was shared by Jefferson’s older contemporary Montesquieu.
“Constitution” generically can be defined as the basic law of any state or country—the set of fundamental principles that define or set limits to the scope of its political operations.
When the US Constitution was birthed, Thomas Jefferson was in Paris. Yet that Constitution was of critical importance to Jefferson, who was so involved in Virginia’s constitution—justly governing was a lifelong preoccupation—that he crafted his own version of it for consideration in 1776.
While in France, Jefferson received a copy of the proposed US Constitution from John Adams or William Stephens Smith. He writes to the latter (TJ to 13 Nov. 1787):
I do not know whether it is to yourself or Mr. Adams, I am to give my thanks for the copy of the new constitution.
In that famous, or infamous, letter, Jefferson talks also of Shays’ Rebellion in Massachusetts—an armed insurrection by western Massachusettsans in 1786 and early 1787 against their government. The insurrection, headed led by Revolutionary War veteran Daniel Shays, was in protest of “unjust” fiscal policies aimed chiefly at farmers, many of whom were war veterans who were to lose their farms or be imprisoned.
Jefferson pardons the insurrectionists for their uprising, which he says was “so honorably conducted.” He adds:
What country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure. Our convention has been too much impressed by the insurrection of Massachusetts; and on the spur of the moment, they are setting up a kite to keep the hen yard in order. I hope in God, this article will be rectified before the new constitution is accepted.
Jefferson’s concern vis-à-vis “this article” is lack of articulation of any rights in the proposed Constitution, to replace the Articles of Confederation.
Of the Constitution, newly crafted, Jefferson was proud. He considered it the most perfect body of essential governmental principles despite its defects. To James Madison (20 Dec. 1787), Jefferson writes of its boons:
I like much the general idea of framing a government, which should go on of 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, I approve of the greater House being chosen by the people directly. For though I think a House so chosen, will be very far inferior to the present Congress, will be very illy 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 person, instead of that of voting by States; and I like the negative given to the Executive, conjointly with a third of either House; though I should have liked it better, had the judiciary been associated for that purpose, or invested separately with a similar power.
Jefferson next continues to Madison with what he does not like:
First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land, and not by the laws of nations.” Such liberties, not expressly states, cannot merely be assumed. Next, there “is the abandonment, in every instance, of the principle of rotation in office, and most particularly in the case of the President.
He adds:
Smaller objections are, the appeals on matters of fact as well as laws; and the binding all persons, legislative, executive, and judiciary by oath, to maintain that constitution.
Yet ultimately the good and bad of the Constitution are to be ascertained by it having been “duly weighed and canvassed by the people, after seeing the parts they generally dislike, and those they generally approve.” What the people pine for is “to have such and such fundamental rights secured by a sacrosanct declaration.” Rights cannot merely be assumed.
Jefferson returns one day later to the issue of the threat of uprisings like Shays in a letter to Edward Carrington (21 Dec. 1787). He asks whether “peace is best preserved by giving energy to the government, or information to the people.” The issue is whether government should clamp down on insurrectionists who rise up in ignorance—and he acknowledges in his letter to Smith that Shays’ insurrectionists were acting mostly in ignorance—or give them full access to all matters concerning their grievances and other matters of state:
This last is the most certain, and the most legitimate engine of government. Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve them.
The sentiment is that rebellions will be infrequent so long as the people are informed of governmental activities, not kept in the dark, as they pertain to citizens’ affairs.
Jefferson continues to Madison:
it requires no very high degree of education to convince them of this. They are the only sure reliance for the preservation of our liberty. After all, it is my principle that the will of the majority should prevail.
What essentially was for Jefferson a constitution?
On June 12, 1816, Jefferson addresses that question in a singular letter to Samuel Kercheval:
Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.
That view Jefferson outrightly rejects. Constitutions are man-made, and thus, flawed documents, though over time and through reasoned debate they can continually be perfected and must be perfected as times change to ensure that government is working toward the happiness of its citizens. In a manner of speaking, the moment a constitution is ratified, it is obsolete. Yet that does not mean it must be perpetually altered:
I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and [we] find practical means of correcting their ill effects.
Yet such modification, which he proposes should happed every 19, or so, years, are not arbitrary or discretionary—hence, Jefferson as a political relativist—but they are to be moved by advances in human understanding of the world and humans’ situation in it:
But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Jefferson was no political relativist, as Dumas Malone and Adrienne Koch have stated.
Thus, constitutions for Jefferson were the law of the land and ought ever to be obeyed, except in scenarios when the “land” itself is threatened with obsolescence (TJ to John Colvin, 20 Sept. 1810).
Enjoy the video below with the Cap’n and the Colonel….
The views expressed at AbbevilleInstitute.org are not necessarily the views of the Abbeville Institute.
I have to mention the elephant in the room, that the Constitution never altered any state’s national sovereignty— as proved by the simple fact that in 1861, the US government claimed that the original 13 states had never been 13 fully-sovereign nations (which Lincoln defined as “a political association without a political superior,” claiming that only Texas had ever held such status, but gave up its sovereignty via the Constitution).
Meanwhile, others claim that Lincoln was simply mistaken, and that the Constitution indeed united the states as a single sovereign nation, out of 13 sovereign nations; as Yale Prof. Akhil Reed Amar alleges in his David c. Bauer lecture on the Constitution:
“In dramatic contrast to Article VII– whose unanimity rule that no state can bind another confirms the sovereignty of each state prior to 1787— Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state may be bound by a federal constitutional amendment even if that state votes against the amendment in a properly convened state convention. And this rule is flatly inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence.”
However sovereign nations cannot lose their sovereignty to outside interpretations; and the Constitution does not expressly surrender the sovereignty of any state– or form a new state over them.
On the contrary: legally, such a deliberate and intentional conjoining of a plurality of nations, into a single nation, would require their doing so through express and direct statements of intent (Ironically, the legal precedent for such a union, was Great Britain itself, which originally recognized the separate sovereignty of the original 13 states).
Therefore the Constitution– like the Articles of Confederation before it– simply formed an international union among 13 sovereign nations, similar to the UN or the EU; with the key difference being that each was now supremely ruled by its respective people (i.e. its electorate); rather than its respective legislature, as had been the case under the Confederation… and the each state’s people now simply delegated power to state and federal governments alike (and could revoke it as well, overruling either or both), as the states legislatures had delegated power to the United States under the Articles of Confederation (and could likewise overrule it).
Therefore in 1860-1861, the people of South Carolina and several other states; simply revoked power from the federal government, and delegated it to their state governments in order to alter their respective state’s national policy, and withdraw from the US Constitutional union; and form a new Constitutional union among each other.
And as with every American state, this sovereignty was never lawfully changed; and neither did the US government claim any lawful change.
Accordingly, every state can now legally challenge the US government’s claim of national union over it, as I explain in detail at TakeBackSovereignty.com.
P.S. Regarding Prof. Amar’s above-quoted statement:
“Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state may be bound by a federal constitutional amendment even if that state votes against the amendment in a properly convened state convention. And this rule is flatly inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence.”
The key word here is “bound.”
As noted here: https://www.gov.ie/en/publication/215fc-how-international-law-works/
“Despite the absence of any superior authority to enforce such rules, international law is considered by states as binding upon them, and it is this fact which gives these rules the status of law.”
So again, the Constitution was only binding on the states as international law; since the US government makes no valid legal argument of national union over any state.