David N. Mayer
The Constitutional Thought of Thomas Jefferson
University Press of Virginia, 1994
397 pages, $39.50
Reviewed by Gary McGath
This review Copyright 1996 by Gary McGath

Thomas Jefferson is the most highly admired of America's founders by lovers of liberty, and with good reason. The Constitutional Thought of Thomas Jefferson gives considerable insight into his views, and helps to illustrate the vast gulf between his vision of a free society and the Leviathan government which we have today. This is no dry treatment of ideas from a past era; it shows Jefferson struggling to reconcile opponents, to apply principles to difficult situations as an advocate of independence and later as Secretary of State and as President. It is a portrait in ideas of a man to be admired.

Mayer starts with the roots of Jefferson's ideas, which he sees as grounded in the "Whig Interpretation" of English history. Jefferson studied Edward Coke's commentaries, which upheld a construction of the Magna Carta that would prohibit legal monopolies and compulsory foreign military service. Locke and Algernon Sidney are mentioned among the better-remembered authors who influenced his thinking.

As Mayer observes, Jefferson was not a philosophical system-builder. When he wrote in the Declaration of Independence that human rights are "self-evident," he meant it literally; he held that the evidence of rights "is not left to the feeble and sophistical investigations of reason, but is impressed on the sense of every man." This reliance on intuition has proven to be a critical weakness in Jefferson's defense of liberty, since it leaves his basic principles unvalidated. But he was highly consistent in his development of a system of government from those principles.

More than most of the founders, Jefferson trusted in popular sovereignty. He regarded the people as the ultimate defenders of liberty. Distrust of power, especially power concentrated in a central government, was central to his political views. He held "jealousy" rather than "confidence" in government to be the proper attitude -- jealousy being understood not in the modern sense of envy, but in the sense of distrust and vigilance. Like Lord Acton, he believed that power corrupts. But he failed to realize that "[p]ower corrupts those who hold it -- the people as well as the governors." Thus, he did not anticipate that people would vote their liberties away wholesale in order to get privileges or loot. Madison and other founders were more aware of this danger.

Among the constitutional measures which he supported in order to avoid concentration of power were federalism and the separation of powers. He saw the federal government as a strictly limited one, primarily concerned with international relations and leaving internal matters in the hands of the states. He stressed the first word of the phrase "necessary and proper" in the Constitution, arguing that the clause authorizes only what is in strictest fact necessary to the implementation of the government's powers. "To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."

However, Jefferson also distrusted the power of the judiciary, and strenuously opposed the idea that the judicial branch should be the final arbiter of the Constitution. Mayer sees Jefferson's views in this area as being colored by his conflict with the extreme judicial activism of John Marshall, but also as grounded in the principle of federalism. He envisioned an active role for the states in opposing unconstitutional federal actions, as is shown by his role in drafting the Kentucky and Virginia Resolutions in opposition to the Alien and Sedition Acts. Mayer says that "Marshall perceived the Supreme Court as a kind of 'guardian of the republic,'" while Jefferson "suspected that such an assumption -- that the Supreme Court knew what was right for the nation -- came too perilously close to 'playing God.'" Whether the Supreme Court has enabled the federal government's vast usurpations of power or has kept them from being even worse is still an open question today.

Jefferson was also a strong advocate of Presidential term limits, and saw their lack as a serious weakness in the Constitution. However, most people saw the precedent which Washington set of a voluntary two-term limit as adequate; and Jefferson "concluded that amendment of the Constitution to correct this flaw would have to wait until 'inferior characters' succeeded Washington in that high office and 'awakened us to the danger which his [Washington's] merit has led us into." This finally did happen, a century and a half later.

The chapter on "The Presidency and Executive Power" is one of the most fascinating in the book, because it shows how Jefferson had to deal with concrete issues when holding the country's highest office. Mayer defends Jefferson on most counts, perhaps even bending over backwards to some extent. Certainly compared to George Bush or Bill Clinton, Jefferson is a giant next to two fleas. He notes that the Constitutional issues raised concerning the Louisiana Purchase -- often cited as a case of Jefferson ignoring his own principles -- were raised largely because of Jefferson's own scruples about strict construction. He expressed a preference for having a Constitutional amendment to authorize the acquisition of new land for the United States, but finally recognized that this was an impractical course.

The conflict between Jefferson and Hamilton is legendary. Mayer, as is appropriate for a book of this type, does not get into its personal dimensions, but treats it as a conflict of ideas; this does not make the treatment any the less fascinating. The opposition between the two men, one an advocate of monarchy and growing government power and spending, the other an advocate of liberty, economy, and strictly limited power, is certainly the stuff of great drama. Mayer quotes extensively from the "Anas," which contains some of Jefferson's most passionate writing. In the short run, Jefferson triumphed in 1800, sweeping out oppressive legislation and reducing the national debt. In the long run, though, Hamilton has proven the winner; it is his philosophy, not Jefferson's, which dominates American politics today.

This leaves us with the question: Is it possible for us today to reclaim Jefferson's legacy? In the last chapter Mayer provides us with a quote from Jefferson which offers us perspective: "The ground of liberty is to be gained by inches; we must be contented to secure what we can get from time to time, and eternally press forward for what is yet to get." No matter how much liberty we have lost, it is still possible to do this. The Constitutional Thought of Thomas Jefferson provides one bit of this progress by making Jefferson's views on liberty clear and pointing out where he fell short. Perhaps one day, if lovers of liberty are persistent enough, Jefferson's principles will prevail and we will once again have the freedom which he helped our ancestors to win.

Order this book from Laissez Faire Books

Index of reviews