Monday, September 15, 2014

James Madison, Limited Government & Individual Liberty

By Tony Williams

This essay offers the very simple argument that James Madison was a staunch advocate of limited government and individual liberty during the creation of the American constitutional republic.  He, like the other Founders, believed that as government assumed more authority, it endangered the rights and liberties of the people. 

In his early public career in Virginia, Madison became a leading figure in the struggle for religious liberty.  A government that violated individual consciences with civil penalties was acting tyrannically and violating the sacred rights of man.  In the creation of the Virginia Declaration of Rights, which helped create a limited, republican government with the purpose of protecting liberty in the Virginia Constitution of 1776, Madison altered George Mason’s clause on religious tolerance to one of liberty of conscience:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience

A decade later, Madison again supported limited government with the disestablishment of the Anglican Church in Virginia to protect this liberty of conscience, writing his Memorial and Remonstrance, in which he stated, “This right is in its nature an unalienable right.”   He led the legislative fight for the Virginia Statute of Religious Freedom, which achieved the goal of disestablishment, while Thomas Jefferson was in Paris.  Almost another decade later, he made the following argument in his essay, On Property:

Government is instituted to protect property of every sort; as well that which lies in various rights of individuals . . . .

More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy.  Conscience is the most sacred of all property . . . the exercise of that, being a natural and unalienable right.

That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.

       During the 1780s, Madison wanted to give the national government more power because he believed the Articles of Confederation failed to achieve its ends, and, most critically, failed to protect liberties in the states.  When he helped frame the new Constitution at the Philadelphia Convention, defended it in his Federalist essays, and fought for its ratification in Virginia, he constantly sought a stronger, but limited government (of enumerated powers), that protected individual liberties.  Federalist #51 demonstrates Madison’s argument for limited republican self-government.  He states, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”  Those precautions included a separation of powers, checks and balances, bicameralism, and federalism to divide and limit government power in order to protect individual liberty. 

         In the First Congress, James Madison was the guiding force behind the Bill of Rights, which had been promised by the Federalists during the ratification debate.  Although Madison did not earlier believe that a Bill of Rights was necessary because as he told the Congress on June 8, 1789, “because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people.”  Nevertheless, he became the main proponent of the Bill of Rights because,      “so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper.” 

       In the 1790s, Madison generally joined with his friend, Thomas Jefferson, to resist what they believed were the unconstitutional centralizing tendencies of the Federalists.  Whether the Federalists supported monarchical policies as much as the Democratic-Republicans believed, and regardless of whether Madison reversed himself from his nationalist outlook in the 1780s (as some historians have accused), he continued his enduring commitment to limited government and protecting the liberties of the American people.  His Virginia Resolution, adopted by the Virginia Assembly in opposition to the Alien and Sedition Acts, claimed the government was exercising:

A power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

       James Madison shared the vision of a constitutional republic with a limited government to protect the natural rights of mankind with the other Founding Fathers.  They believed that every person inherently possesses civil and religious liberties given to them by “Nature and Nature’s God,” which cannot be alienated by any earthly power. 

Tony Williams is the Program Director of the WJMI, and the author of five books, including Washington and Hamilton: The Alliance that Created America (forthcoming, 2015)


Sunday, August 31, 2014

James Madison, Prudent Statesman




















By Tony Williams

The Washington, Jefferson & Madison Institute is proudly hosting its semi-annual seminar on the life and writings of James Madison on September 12, 2014, as it advances its mission to teach teachers founding principles in preparation for Constitution Day. In anticipation of this educational seminar, following are a few thoughts on the caliber of statesmanship exhibited by our nation's fourth president.

In the modern world of politics, ideological purity and rigidity is considered a great virtue, and talking heads from both sides shout each other down instead of deliberating on public issues while ordinary citizens become disgusted with politics.  The example Founder James Madison provides an excellent antidote to this brand of politics. 

James Madison was a profound thinker.  He prepared for momentous occasions of deliberation, such as the Constitutional Convention, by studying ancient and modern history and thinkers, often thanks to the caseloads of books sent by his friend Thomas Jefferson.  Madison’s study of political history and philosophy gave him great insights into the nature of human beings and government.  His reading shaped his lifelong commitment to republican, constitutional self-government. 

Madison, however, was more than a philosopher who had deep thoughts in the solitude of his library.  He was a practical politician and prudential statesman who understood the art of deliberation and compromise in the pursuit of political objects including founding a nation.  If James Madison were ideologically rigid, the Founding would have looked very different or might not have happened at all.  The greatest example of his statesmanship come especially from 1787 to 1789. 

At the initial stages of the Constitutional Convention in June, 1787, James Madison’s Virginia Plan dominated the discussions.  Even when Madison lost his treasured ideas of proportional representation in both houses and a national veto on state laws failed, and he thought it had ruined his plan, he persevered and compromised to achieve his object of a written Constitution.  The document was signed September 17, and sent to state ratifying conventions.

Madison was one of the key proponents of the Constitution, known as Federalists, and wrote numerous Federalist essays as Publius, defended the Constitution tooth and nail against the unremitting assaults by Patrick Henry in the Virginia Ratifying Convention, and was a strategist and correspondent behind the scenes to help win ratification.  Even when he lamented that several conventions caved into Anti-Federalist demands and allowed “recommended amendments,” Madison soon admitted the prudence of doing so and compromised to get ratification while preventing opponents from winning “conditional amendments” or even a second convention.

Madison was opposed to the inclusion of a Bill of Rights because he thought the enumerated powers created a limited government that had no authority to violate rights.  Ironically, however, he became the firmest advocate for the Bill of Rights in the First Congress to reconcile the opponents and the American people to the new Constitution to advance national unity.  On June 8, 1789, he introduced the Bill of Rights, stating, “We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.  The acquiescence which our fellow citizens show under the government, calls upon us for a like return of moderation.”  He helped reconcile the different proposals for amendments and pushed them through the Congress for eventual ratification. 

Amity.  Moderation.  Acquiescence.  Deliberation.  Compromise.  These prudential political considerations do not mean a surrender of principle or letting the other side “win.”  They are the marks of the highest art of statesmanship in pursuit of the common good.  James Madison was a shining example of a principled, yet prudential, statesman that often appears to be lacking among modern politicians. 

Tony Williams is the WJMI Program Director and the author of several books including the forthcoming Washington and Hamilton: Forging a Nation (2015)


Monday, August 11, 2014

Abraham Lincoln and the Declaration Of Independence


















Black abolitionist Frederick Douglass said of President Lincoln: "Even those who only knew him through his public utterances obtained a tolerably clear idea of his character and his personality. The image of the man went out with his words, and those who read them knew him."  (Oration in Memory of Abraham Lincoln, April 14, 1876). James M. McPherson, a noted Civil War historian wrote, “The 'first cause,' the central vision that guided Lincoln … was preservation of the United States and its constitutional government … It was rooted in the Declaration of Independence and the ideals of liberty and equal opportunity that the Declaration had implanted as a revolutionary new idea on which the United States was founded.” (Abraham Lincoln and the Second American Revolution (Oxford University Press, New York, 1991), p. 115-116). Simply stated, Abraham Lincoln’s “polar star” and guiding principles were those found embodied in the Declaration of Independence. As he said in 1861, “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.”  He spoke of the Declaration and its principles frequently throughout his political career. Not only did he speak of them, but he believed in them and relied upon them in his decisions. Following are a few references from Lincoln’s speeches and debates:

"Let us readopt the Declaration of Independence, and with it the practices and policy which harmonize with it. Let north and south -- let all Americans -- let all lovers of liberty everywhere -- join in the great and good work. If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations."
Roy P. Basler, editor, The Collected Works of Abraham Lincoln, Volume II, (Speech at Peoria, October 16, 1854)(cited as “CW”)

"[L]et us revere the Declaration of Independence; let us continue to obey the Constitution and the laws; and let us keep step to the music of the Union.”
 CW, Volume II, (Speech at Bloomington, May 29, 1856)

We hold these truths to be self-evident: that all men are created equal…That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.”
 CW, Volume II, p. 500 (Speech at Chicago, July 11, 1858)

"'We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.' This was [the Founders'] majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures...look up again to the Declaration of Independence and take courage to renew the battle which [your] fathers began — so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land..."
CW, Volume II, p. 544-546 (August 17, 1858)

“Now, my countrymen, if you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence; if you have listened to suggestions which would take away from its grandeur, and mutilate the fair symmetry of its proportions; if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to come back. Return to the fountain whose waters spring close by the blood of the Revolution.” 
Ibid.

“I think the authors of that notable instrument [the Declaration of Independence] intended to include all men, but they did not mean to declare all men equal in all respects. They did not mean to say all men were equal in color, size, intellect, moral development or social capacity. They defined with tolerable distinctness in what they did consider all men created equal — equal in certain inalienable rights, among which are life, liberty and the pursuit of happiness. This they said, and this they meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right so that the enforcement of it might follow as fast as circumstances should permit.”
CW, Volume III, p. 283-325 (Debate at Alton, October 15, 1858)

“They [the Founders who issued the Declaration] meant to set up a standard maxim for free society which should be familiar to all,—constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people, of all colors, everywhere.”
 Ibid.

“All honor to Jefferson — to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.”
CW, Volume III, p. 376 (Letter to Henry L. Pierce, April 6, 1859)

“I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.”
CW, Volume IV, p. 240-241 (Speech at Philadelphia, February 22, 1861)

“I have often inquired of myself, what great principle or idea it was that kept this [nation] so long together. It was not the mere matter of the separation of the colonies from the mother land; but something in that Declaration giving liberty, not alone to the people of this country, but hope to the world for all future time.  It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance. This is the sentiment embodied in that Declaration of Independence.”
Ibid.

“[July 4, 1776] was the birthday of the United States of America. Since then the Fourth of July has had several peculiar recognitions. The two most distinguished men in the framing and support of the Declaration were Thomas Jefferson and John Adams  the one having penned it and the other sustained it the most forcibly in debate — the only two of the fifty-five who sustained it being elected President of the United States. Precisely fifty years after they put their hands to the paper it pleased Almighty God to take both from the stage of action. This was indeed an extraordinary and remarkable event in our history.”
CW, Volume VI, p. 319-320 (Response to a Serenade, July 7, 1863)

“Four score and seven years ago our fathers brought forth, on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal….” 
Gettysburg Address (November 19, 1863)



Saturday, July 19, 2014

Natural Law Principles













"The Laws of Nature and of Nature's God" -- are the foundation of the political principles of American independence.  As set forth in the writings of Locke, Sidney, and others, it means that nature has inherent laws by which each individual has a conscience, accountability for one’s actions, and a duty to not harm others or their property.  Thomas Jefferson and James Madison stated that “the general principles of liberty and rights of man in nature and society” are to be found in the writings of John Locke and Algernon Sidney (Minutes of the Board of Governors of the University of Virginia, March 4, 1825). Following is a brief summary of natural law principles found in their writings and in the Declaration of Independence:

“All men are created equal” – all men and women as individuals are equal in their natural rights and equal before the law.

“…all men by Nature are equal, I cannot be supposed to understand all sorts of Equality: Age or Virtue may give Men a just Precedency: Excellency of Parts and Merit may place others above the common level: Birth may subject some, and Alliance or Benefits others, to pay an Observance to those to whom Nature, Gratitude or other Respects may have made it due; and yet all this consists with the Equality which all men are in, in respect of Jurisdiction or Dominion one over another, which was the Equality I there spoke of... being that equal Right that every Man hath, to his natural Freedom, without being subjected to the Will or Authority of any other Man." – John Locke (Second Treatise on Government, Chapter 6, sec. 54)

“The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” – John Locke (Second Treatise on Government, Chapter 2, sec. 6)

All men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” – all men and women are born with a divine right to be free and to choose liberty or captivity, virtue or vice, happiness or misery.

"The principle of liberty in which God created us …includes the chief advantages of the life we enjoy, as well as the greatest helps towards felicity, that is the end of our hopes in the other." –Algernon Sidney (Discourses Concerning Government, I:2:5)

“Liberty …is the gift of God and nature." –Algernon Sidney (Discourses Concerning Government, I:17:44)

Virtue is necessary to establish and preserve liberty and happiness – as George Washington and Thomas Jefferson taught, there is an “indissoluble union between virtue and happiness,” and “virtue is the foundation of happiness.” Happiness is the purpose of life and the end of government.

"If vice and corruption prevail, liberty cannot subsist; but if virtue have the advantage, arbitrary power cannot be established." –Algernon Sidney (Discourses Concerning Government, II:30:241-242) [Copied by Thomas Jefferson in his Commonplace Book]

“… virtue [is] so essentially necessary to the establishment and preservation of liberty, that it [is] impossible for a corrupted people to set up a good government, or for a tyranny to be introduced if they be virtuous; and … where the matter (that is, the body of the people) is not corrupted, tumults and disorders do not hurt; and where it is corrupted, good laws do no good..." –Algernon Sidney (Discourses Concerning Government, II:11:104-05)

"Virtue is the dictate of reason, or the remains of divine light, by which men are made beneficent and beneficial to each other. Religion proceeds from the same spring; and tends to the same end; and the good of mankind so entirely depends upon the two, that no people ever enjoyed anything worth desiring that was not the product of them; and whatsoever any have suffered that [which] deserves to be abhorred and feared, has proceeded either from the defect of these, or the wrath of God against them. If any [leader] therefore has been an enemy to virtue and religion, he must also have been an enemy to mankind, and most especially to the people under him." –Algernon Sidney (Discourses Concerning Government, II:27:212).

“…to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” – the people are sovereign and delegate their power to government to secure their rights, and their representatives are accountable to them.

"We are free-men governed by our own laws, and ...no man has a power over us, which is not given and regulated by them." –Algernon Sidney (Discourses Concerning Government, III:17:329)

"Those who delegate powers, do always retain to themselves more than they give, they [the people] who send these men [representatives], do not give them an absolute power of doing whatsoever they please, but retain to themselves more than they confer upon their deputies: they must therefore be accountable to their principals …" –Algernon Sidney (Discourses Concerning Government, III:38:423)

Freedom is maintained by just laws – human laws based upon natural law preserve order and enlarge individual freedom.

"Laws are made to keep things in good order without the necessity of having recourse to force." --Algernon Sidney (Discourses Concerning Government, III:13:306)

“The end of law is not to abolish or restrain, but to preserve and enlarge freedom: For in all the states of created beings capable of laws, where there is no law, there is no freedom.” – John Locke (Second Treatise on Government, Chapter 6, sec. 57)

The supreme law is the safety of the people – the primary object of government is to protect the lives, rights, liberties, and property of the people.

"If the safety of the people be the supreme law, and this safety extend to, and consist in, the preservation of their liberties, goods, lands, and lives, that law must necessarily be the root and the beginning, as well as the end and the limit, of all magistratical [governmental] power, and all laws must be subservient and subordinate to it." --Algernon Sidney (Discourses Concerning Government, III:16:318).

"[Governmental] power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation..." --John Locke (Second Treatise on Government, Chapter 11, sec. 135)

Private Property is a natural right and is an appendage to liberty – the possession of our rights, and the ownership and control of the fruits of our mind and labors of our body is a natural right.

"Everyone has property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his." --John Locke (Second Treatise on Government, Chapter 5, sec. 27)

"Property is also an appendage to liberty; and it is impossible for a man to have a right to land or goods, if he has no liberty, and enjoys his life only at the pleasure of another, as it is to enjoy either, when he is deprived of them." --Algernon Sidney (Discourses Concerning Government, III:16:318)

“…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security” – the people have a right and a duty to resist and to overthrow tyranny.

"And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject."--John Locke (Second Treatise on Government, Chapter 13, sec. 149)

"... whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience ... [Power then] devolves to the People, who have a Right to resume their original Liberty, and, by the Establishment of a new Legislative (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society." --John Locke (Second Treatise on Government, Chapter 19, sec. 222)

"But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel, what they lie under, and whither they are going, 'tis not to be wondered, that they should then rouse themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which government was at first enacted." --John Locke (Second Treatise on Government, Chapter 19, sec. 225)


Tuesday, July 15, 2014

Why Washington, Jefferson & Madison?













By: Tony Williams and J. David Gowdy

The maxims of the Washington, Jefferson & Madison Institute are “Virtue, Liberty, Knowledge” – three ideals that are deeply embedded in the American Founding and in the lives and writings of the three Virginia Founders and Presidents that we have chosen to represent the name of our Institute.

George Washington.  No one in the American Founding represents the ideal of virtue as much as the Indispensable Man, George Washington.  Washington embodied the idea of private and public virtue throughout his life.  He mastered himself to become the virtuous general, statesman, and first President of the United States.  He continually and unselfishly answered the call of his country, served the republic without pay, and retired to the comfort of Mount Vernon instead of seizing power.  At the end of the Revolutionary War, he returned his commission to the Congress and did not become a Caesar.  After establishing the precedent of two terms and rotation in office, Washington resigned from the presidency and did not become a king. 

          Washington (and all of the Founders) also spoke often about virtue.  They believed that self-mastery was necessary for a self-governing people to enjoy the fruits of liberty and that those who governed the republic must also be virtuous.  He stated, “The aggregate happiness of society, which is best promoted by the practice of a virtuous policy, is, or ought to be, the end of all government.”[i]  Washington’s First Inaugural Address focused a great deal on virtue: “The foundation of our national policy will be laid in the pure and immutable principles of private morality . . . . There exists in the economy and course of nature an indissoluble union between virtue and happiness; between duty and advantage; between the genuine maxims of an honest and magnanimous policy and the solid rewards of public prosperity and felicity.”[ii] Washington was, and always should be, "First in war, first in peace, first in the hearts of his countrymen"[iii]

Thomas Jefferson.  In our minds, the Founding Father who best represents the idea of liberty is the author of the Declaration of Independence, the Virginia Statute for Religious Freedom, the father of the University of Virginia, and the third President.  These great documents and institutions of liberty were emblematic of Jefferson’s defense of the human yearning for individual liberty and for freedom from government control of one’s political or religious opinions, and the individual right to pursue happiness how one chooses.  Jefferson was an Enlightenment thinker who had great optimism in progress rooted in human liberty.  As he wrote shortly before his death, “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.”[iv]

Jefferson, along with the other Founding Fathers, however, believed in liberty under law.   Liberty would be guided by virtue, or it would become license, which would ruin the individual soul as well as the republic.  As Jefferson wrote, “Liberty…is the great parent of science & of virtue: and that a nation will be great in both, always in proportion as it is free.”[v]  Jefferson should always be remembered as the great advocate of human equality and liberty.

               James Madison.  This Virginian completing the triumvirate of Founders was the Father of the Constitution, the main architect of the Bill of Rights, and the fourth President.  The force of Madison’s statesmanship, lawgiving, and rhetoric was based upon his deep study in ancient and modern history and philosophy.  From his studies under Rev. John Witherspoon at Princeton University, his study of ancient and modern confederacies before the Constitutional Convention, his reading in political philosophy for his major contributions to the Federalist Papers, and his leadership with Jefferson creating the University of Virginia for educating future statesmen and citizens, Madison knew that knowledge was the basis of republican constitution-making and citizenship. 

Madison believed that the citizenry in a Republic must be educated in the principles of liberty and watchful of their government to prevent tyranny.  He wrote, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”[vi] Madison should always be remembered as the chief architect of our individual rights, privileges, and liberties under the Constitution.

Studying the lives and writings of these three Founders – Washington, Jefferson & Madison – and those three founding ideals – “Liberty, Virtue, and Knowledge” – form the basis of the WJMI charter, “To Perpetuate the Study of the Teachings and Examples of the Founders of the Republic” and of our mission, which is, "To instill within educators and students of the rising generation, a greater understanding of, and appreciation for, the Founding Fathers and the Founding Documents of the United States of America." We invite you to join us in this great cause.



[i] George Washington to Comte de Moustier, November 1, 1790. 
[ii] George Washington, “First Inaugural Address,” April 30, 1789, http://teachingamericanhistory.org/library/document/first-inaugural-address/
[iii]  Words from the eulogy written by Henry Lee for George Washington, adopted by Congress immediately after Washington’s death.
[iv] Thomas Jefferson to Roger C. Weightman, June 24, 1826, http://teachingamericanhistory.org/library/document/letter-to-roger-c-weightman/
[v] Thomas Jefferson to Dr. Willard, 1789.
[vi] James Madison to W. T. Barry, August 4, 1822.

Friday, June 27, 2014

The True Corrective of Abuses of Constitutional Power













William Charles Jarvis (1770–1859) was an American diplomat, financier and philanthropist best known for introducing the merino breed of sheep into the United States from Spain. He was appointed by President Jefferson as U.S. Consul in Lisbon, Portugal where he served ten years. Mr. Jarvis wrote to Thomas Jefferson and sent a copy of the "Republican"[1] where he apparently argued in an article published therein that the federal judiciary, or Supreme Court, are the “ultimate arbiters of all constitutional questions.” However, Jefferson respectfully disagrees with Jarvis, discusses the separation of powers, and states his opinion that the people themselves are sovereign and thus to educate the minds of the people is the ultimate cure for any abuses of Constitutional power.

To William Charles Jarvis.
Monticello, September 28, 1820.

I thank you, Sir, for the copy of your Republican which you have been so kind as to send me, and I should have acknowledged it sooner but that I am just returned home after a long absence.  I have not yet had time to read it seriously, but in looking over it cursorily I see much in it to approve, and shall be glad if it shall lead our youth to the practice of thinking on such subjects and for themselves.  That it will have this tendency may be expected, and for that reason I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthened by that of many others.  You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps.  Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.  If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him.  They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the President or legislature may issue orders to the judges or their officers.  Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs.  The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department.  When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.  The exemption of the judges from that is quite dangerous enough.  I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.  Pardon me, Sir, for this difference of opinion.  My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence on each other it may last long, but not so if either can assume the authorities of the other.  I ask your candid re-consideration of this subject, and am sufficiently sure you will form a candid conclusion.  Accept the assurance of my great respect.
Th: Jefferson



[1] “…the copy of your Republican” mentioned by Jefferson likely refers to the Bunker Hill Sentinel and Middlesex Republican newspaper which was published in Charlestown (Boston) Massachusetts beginning in June 1820.
 [emphasis added]

Saturday, May 31, 2014

The Virginia Declaration of Rights












In early May, 1776, Congressman John Adams co-sponsored a resolution calling of the colonies to “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general.”

On May 15, Congress adopted the resolution with a preamble Adams wrote that asserted that the people in their colonies were sovereign and governed themselves by their own consent.  The preamble virtually amounted to a declaration of independence from Great Britain.  The preamble read:

It is necessary that the exercise of every kind of authority under the said Crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order as well as for the defense of their lives, liberties and properties, against the hostile invasions and cruel depredations of their enemies.

On that same day, the delegates to the Fifth Virginia Convention (the governing body of the colony) assembled in Williamsburg and instructed its delegates in Philadelphia to “propose to that respectable body to declare the United Colonies free and independent states, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain.”  The Convention then drafted a declaration of rights and a constitution based upon Congress’ resolution.  Patrick Henry, James Madison, and George Mason were among the notables appointed to the committee to draft the declaration of rights. 

The resulting Virginia declaration of rights was one of the most significant expressions of American Founding principles.  Its Lockean principles of self-government would shape Thomas Jefferson’s Declaration of Independence in Philadelphia a month later and the American Constitution and Bill of Rights over a decade later. 

When it was adopted on June 12, 1776, the declaration averred the universal principle that all humans have certain fundamental rights by nature that government cannot violate.  The slaveholders of Virginia recognized the import of these universal principles for slavery and added the section about not being divested of those rights “when they enter into a state of society.”   The declaration read, in language that would influence the Declaration of Independence:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The declaration supported the Lockean idea of a social compact that the sovereign people formed a representative government with the purpose of protecting their rights.  It stated, “That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants.” 

The declaration upheld the principle that the same people had a right to rebel against tyrannical government that violated their rights and form a new government.  In language that strongly shaped the Declaration of Independence, the Virginia declaration stated: “Whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.” 

The declaration included several principles of a constitutional republic that would undergird the American system of self-government.  For example, it contained a the ban on “descendible” or “hereditary” privileges and offices.  The declaration also asserted that, “the legislative and executive powers of the state should be separate and distinct from the judicative,” supporting the ideas of Montesquieu for a separation of powers that would influence James Madison at the Constitutional Convention.  An important characteristic of government by consent was to have “frequent, certain, and regular elections” which were fixed and free.

The declaration also placed stringent limits on the power of government and reserved those powers to the consent of the people.  The people could not taxed without their consent, the government could not suspend laws without the consent of the people, and the accused had many rights that the lawful government was bound to respect – know the cause of an accusation, confront witnesses, enjoy a fair and speedy trial by his peers, not incriminate himself, not lose his fundamental rights without due process, or be arrested without a warrant.  These formed the basis of the Fourth, Fifth, and Sixth Amendments in the Bill of Rights. 

Additional protections in Virginia that would eventually influence the Bill of Rights were no excessive bail, no excessive fines, and no cruel and unusual punishments.  In a strong statement of the importance of the connection between a free press and republican liberty, the declaration stated: “That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” 

Besides a clause for an armed people forming a militia for the “safe defense of a free state,” the declaration affirmed its opposition to “standing armies, in time of people . . . avoided as dangerous to liberty” and a military that was “under strict subordination to, and be governed by, the civil power.”  Thus, it helped shape the Second Amendment and asserted principles that General George Washington would embody in his actions resigning at the end of the Revolutionary War. 

As in several other statements before and during the Revolutionary War, the Virginians proclaimed that republican self-government was rooted upon the virtue of the people and natural law.  “That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”

Although George Mason sought to include the revolutionary and Lockean idea of religious tolerance into the document, Madison amended the statement to be a broad statement of religious liberty of conscience as a fundamental natural right.  The declaration stated:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

The Virginia Declaration of Rights is studied every year by schoolchildren in Virginia, but it should be studied by students and citizens everywhere as one of the core documents of American liberty and Founding principles standing alone and as a document that laid the foundation for our other most important Founding documents. 
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Tony Williams is the Program Director of the WJMI and the author of America’s Beginnings: The Dramatic Events that Shaped a Nation’s Character. 

Image: Adoption of the Virginia Declaration of Rights, oil painting by Jack Clifton. Virginia State Artwork Collection: acquired: 1974, Library of Virginia.