Letter from Thomas Jefferson to James Madison with his thoughts on the 1787 Constitution.

 

The season admitting only of operations in the Cabinet, and these being in a great measure secret, I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the Constitution proposed by our Convention. I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary & Executive, I like the power given the Legislature to levy taxes, and for that reason solely approve of the greater house being chosen by the people directly.  For tho I think a house chosen by them will be illy qualified to legislate for the Union, for foreign nations &c. 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 or the great & little states, or the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states: and I like the negative givcn to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate powcr. There are other good things of less moment. I will now add what I do not like, First the omission of a bill or rights providing dearly & without the aid of sophisms for freedom of religion, freedom or the press, protection against standing armies, rcstrictions against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of nations. To say, as Mr. Wilson does that a bill of rights was not necessarv because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved, might do for the audience to whom it was addressed, but is surely a gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamitv. It would have been much more just & wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established gcneral right instead of general wrong, Let me add that a bill of rights is what the people arc entitled to against every government on earth, gcneral or particular, & what no just govcrnment should refuse, or rest on inferences. The second feature I dislike, and greatly dislike, is thc abandonment in cvery instance of the ncccssitv of rotation in office, and most particularly in the case of the President.  Expcrience concurs with reason in concludiug that the first magistrate will alwavs be re-elected if the Constitution permits it. He is then an officer for life. This once observed, it becomes of so much consequence to certain nations to have a friend or a foe at the head of our affairs that they will interfere with money & with arms.  A Galloman or an Angloman will be supported by the nation he befriends. If once elected. and at a second or third election out voted by one or two votes, he will pretend false votes, foul play, hold possession of the reins of government, be supported by the States voting for him, espcciallv if they arc the central ones lying in a compact body themselves & scparating their opponents  and they will be aided by one nation of Europe, while the majority are aided by another. The election of a President of America some years hence will be much more interesting to certain nations of Europe than ever the election of a king of Poland was. Reflect on all the instances in history anticnt & modern, of elective monarchies, and say if they do not give foundation for my fears. The Roman emperors, the popes, while they were of any importance, the German emperors till they became hereditary in practice, the kings of Poland, thc Deys of the Ottoman depcndances. It may be said that if elections are to be attended with these disorders, the seldomer they are renewed the better. But experience shews that the only way to prevent disorder is to render them uninteresting by frequent changes, An incapacity to bc elected a second time would have been the only effectual preventative. The power of removing him every fourth year by the vote of the people is a power which will not be exercised, The king of Poland is rcmovable every day by the Diet, yct he is never removed. Simialr objections are the Appeal in fact as well as law, and the binding all persons Legislative, Executive & Judiciary by oath to maintain that constitution, I do not pretend to decide what would bc the best method of procuring the establishment of the manifold good things in this constitution, and of getting rid of the bad. Whether by adopting it in hopes of future amendment, or, after it has been duly weighcd & canvassed by the people, after seeing the parts they generally dislike, & those they generally approve, to say to them “We see now what you wish.  Send together your deputies again, let them frame a constitution for you omitting what you have condemned, & establishing the powcrs you approve, Even these will bea great addition to the energy of your government.”  At all events I hope you will not be discouraged from other trials if the present one should fail of its full effect.--I have thus told you freely what I like & dislike: merely as a matter of curiosity for I know your own judgment has been formed on all these points after having heard everything which could be urged on them, I own I am not a friend to a very energetic government.  It is always oppressive. The late rebellion in Massachusetts has given more alarm than I think it should have done. Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century & a half.  No country should be so long without one. Nor will any degree of powcr in the hands of government prevcnt insurrections. France, with all it's despotism, and two or three hundred thousand men always in arms has had three insurrections in the three years I have been here in every one of which greater numbers were engaged than in Massachusetts & a great deal more blood was spilt.  In Turkey, which Montesquieu supposes more despotic, insurrections are the events of every day. In England, where the hand of power is lighter than here, but heavier than with us they happen every half dozen years. Compare again the ferocious deprcdations of their insurgents with the order, the moderation & the almost self extinguishment of ours. After all, it is my principle that the will of the majority should always prevail.  If they approve the proposed Convention in all it's parts, I shall concur in it chearfully, in hopes that they will amend it whenever they shall find it work wrong.  I think our governments will remain virtuous for many centuries; as, long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America. When they get piled upon one another in large cities, as in Europe. thcy will become corrupt as in Europe, Above all things I hope the education of the common people will be attended to; convinced that on their good sense we may rely with the most security for the preservation of a due degree of liberty. I have tired you by this time with my disquisitions & will therefore only add assurances of the sincerity of those sentiments of esteem & attachment wiyh which I amll Dear Sir your affectionate friend & servant

P. S. The instability of our laws is an immense evil. I think it would be well to provide in our constitutions that there shall always be a twelve-month between the ingrossing a bill & passing it: that it should then be offered to it's passage without changing a word: and that if circumstances should be thought to require a speedier passage, it should take two thirds of both houses instead of a bare majority.