To be changed every 20 years

This is the third in my series on Jefferson’s political thought.  In the last post, I examined how Jefferson tended to disparage traditionalism while instead focusing on the “will of the moment.”  In this post we will see how that philosophy shaped Jefferson’s constitutional thought and inspired his belief that constitutions ought to be changed frequently to keep up with the will of the moment.

In a letter to James Madison, Jefferson writes:

On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law.  The earth belongs to the living generation.  They may manage it then, and what proceeds from it, as they please, during their usufruct.  They are masters too of their own persons, and consequently may govern them as they please.  But persons and property make the sum of the objects of government.  The constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being.  This could preserve that being till it ceased to be itself, and no longer.  Every constitution, then, and every law, naturally expires at the end of 19 years.  If it be enforced longer, it is an act of force and not of right.[1]

This generational argument is an important aspect of Jefferson’s constitutional philosophy. It should be noted that Jefferson’s insistence that the Constitution ought to be changed so frequently drew criticism from even his political ally, James Madison.  Madison critiqued Jefferson’s generational argument by noting that no such pure generation truly exists.  More importantly, Joseph Ellis writes, the problem with this idea is that it “struck at the very stability and long-term legality that the new Constitution was designed to ensure.”[2]

Jefferson believed that “earth belongs in usufruct to the living,” and such a framework makes the Constitution’s permanency tenuous at best.  By allowing the democratic will to regularly alter the contents of the document, there is no respect for tradition or eternal standards.  Each so-called generation determines its own rules, but it does so at risk of violating natural law.

Orestes Brownson regards Jefferson’s compact theory of government as a threat to eternal law.  Because generations cannot bind each other, the social compact is “limited to the individuals who form it,” and expires with it.[3] The social contract is limited in its ability to promote societal harmony because it is mutable to a degree that prohibits the formation of immutable standards of law and order.

Jefferson promotes the idea of fresh starts.  In writing of the French Revolution, he expresses admiration of their cause and hopes that they will throw off the fetters of the oppressive rulers.  “The National assembly,” he writes, “have now as clean a canvass to work on here as we had in America.  Such has been the firmness and wisdom of their proceedings in moments of adversity as well as prosperity, that I have the highest confidence that they will use their power justly.”[4]

Jefferson later continues on this point, asserting the basic novelty of the American experience.

Our Revolution commenced on more favorable ground.  It presented us an album on which we were free to write what we pleased.  We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry.  We appealed to those of nature, and found them engraved on our hearts.  Yet we did not avail ourselves of all the advantages of our position.  We had never been permitted to exercise self-government.  When forced to assume it, we were novices in its science.  Its principles and forms had entered little into our former education.  We established however some, although not all its important principles.[5]

Jefferson’s references to a clean canvass and Americans’ ability to “write what they pleased” ignore the vast respect for custom and tradition seen in the American constitutions.  The Framers did not start from scratch, but instead incorporated both new and old elements into the Federal Constitution.  While it is true that the American experiment in constitutional democracy was innovative in its own regard, Jefferson’s implication that the French and American revolutions are similar in spirit rings hollow.  The French Revolution was a cultural and political revolution that radically altered the existing social order in a way that cannot be said of the American.

Jefferson, like the French philosophes, goes quite far in dismissing the pull of previous generations.  Again, Jefferson is not necessarily discarding all of history, but he advocates a set of beliefs that quite markedly diminishes the importance of tradition and eternal standards.  This attitude is a stark contrast to Russell Kirk and other traditionalists. Kirk quotes Fulbert of Charters and G.K. Chesterton to elaborate on the importance of our ancestors regarding eternal standards.  Fulbert’s famous quotation, that “we are dwarves mounted upon the shoulders of giants” is an essential creed of conservative philosophy.[6] While we may know more than our ancestors, we only know so much because of our ancestors.  They laid the framework that we continue to build upon.  By breaking down the edifice that they constructed we are forced to start over repeatedly.  In order for society to progress, we must also rely upon the wisdom of the ancients.

Chesterton calls this the “democracy of the dead.”  He posits that we ought to consult the ideas of our forebears when deciding today’s questions.[7] Disregarding their wisdom places us at a disadvantage because these ancestors are a treasure trove of wisdom that we ignore at our own peril.

These ideas stem from a belief in the organic nature of society.  Humans must retain a level of humility that recognizes that we are not completely self-sufficient.  Individuals need others, both living and dead.  Again, that is not to say that we must slavishly cling to the ideas of the past, but the callous disregard for the past dooms us to be “flies of the summer,” repeatedly creating new societal structures that contain a limited sense of permanency.  There are no eternal standards; they are replaced by the will of the present majority.[8]

Jefferson’s hostility to organized religion further demonstrates his unwillingness to be bound by tradition or traditional institutions.  Jefferson thinks that religion diminishes human freedom because it inhibits the individual’s ability to think independently.  Organized religions develop dogmas which stultify the mind.  As his biographer, Dumas Malone observes, Jefferson did not attack religion because he was irreligious, but because a certain church had become political, “or because it limited, in one way or another, the freedom of the mind – on which, as he never ceased to believe, the progress of the human species toward happiness depends.”[9]

The most famous expression of Jefferson’s hostility to an established church is found in his message to the Danbury Baptist Association.

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with solemn reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State.  Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[10]

The metaphor of the wall of separation is often quoted and just as often misinterpreted.  It would be used a century and a half later in Supreme Court decisions to justify restrictions on funding of parochial schools and other uses of public funds to religious institutions, as well as the elimination of prayer from public schools.[11]

Whatever merits Jefferson’s constitutional interpretation has[12], it has greatly influenced American society for generations.  The metaphor of the “wall of separation” has been ingrained in constitutional jurisprudence, and it has also inspired others to attempt to diminish the role of religion in the public sphere.

Some have criticized this attitude, believing that Jefferson underestimates the role of religion in promoting freedom and liberty. Christianity had developed a sense of personal liberty, as for example the idea of “rendering unto Caesar what is Caesar’s.”  “It set up a domain of free conscience, in which the individual might take refuge from the encroachments of the omnipotent state.”[13] Babbitt adds that Christianity has actually tempered man’s lust for power, but modern man has turned away from religion and such external controls.[14] Jefferson reduces religion’s place in society to an even greater extent than his admittedly secularist fellow Founding Fathers, thus weakening these external controls.

This modernistic denial of external authority also leads to the problem of moral relativism.  People began to deny the existence of absolute truths, and they declared the freedom to define their own concepts of existence, liberty, and life.[15] Michael Novak believes that “democratic and capitalist regimes are not sustainable except under certain moral conditions and among citizens of specifiable moral habits.  For their survival, they will have to tend again to central virtues.”[16] According to Novak, atheistic societies are less sustainable.  What such societies “can tell is neither why individual rights are inviolable, nor why each individual person is of incommensurable value.”[17]

Daniel Boorstin also criticizes what he sees as the short-term thinking inherent in Jefferson’s thought.  Jefferson’s philosophy of rights contains nothing about duty or positive moral values.  Boorstin writes that “such a view may too easily be satisfied with the forms, while overlooking the substance of justice.  It may frustrate its own larger end because it lacks foresight or concern for the new conflicts always bred by the satisfaction of discrete claims.”[18]

Ultimately this Jeffersonian creed is tied to the present.  He holds that each nation has a right to “change its political principles and constitution at will,”[19] a profoundly democratic idea that signifies reluctance to tie the hands of the general will.

This is another Rousseauian element in Jefferson’s thinking.  Rousseau had written in the Social Contract:

In fact, while it is not impossible for a private will to be in accord on some point with the general will, it is impossible at least for this accord to be durable and constant.  For by its nature the private will tends toward having preferences, and the general will tends toward equality.  It is even more impossible for there to be a guarantee of this accord even if it ought always to exist.  This is not the result of art but of chance.  The sovereign may well say, “Right now I want what a certain man wants or at least what he says he wants.”  But it cannot say, “What this man will want tomorrow I too will want,” since it is absurd for the will to tie its hands for the future.”[20]

Rousseau prizes spontaneity as the lifeblood of society, and therefore disdains anything which restricts this spontaneity.  Humans must be free to transact their concerns as they see fit, and an eternal standard of law prevents humans from being completely free. This is the lifeblood of both Jefferson and Rousseau’s political system.  Each individual human being has an equally valid insight into truth, and therefore each human being must be allowed to participate in the decision-making of the community.

But there is another element of this thinking that must be further explored, and that is the appeal to revolutionary sentimentality that lies at the root of all of it.  That will be the focus of my next post.

[1] Jefferson to James Madison, Paris, 6 September, 1789, in Jefferson Writings, 963. Jefferson does not pluck this number out of thin air.  There is actually a formula he devises to determine when constitutions ought to expire based on the average life expectancy of men.  See ibid., 960-961.

[2] Joseph Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Alfred A. Knopf, 1997), 111.

[3] Brownson, The American Republic: Its Constitution, Tendencies and Destiny (New York: P. O’Shea, 1866), 65.

[4] Jefferson, Diodati, Paris, 3 August, 1789, in Jefferson Writings, 957.

[5] Jefferson to Major John Cartwright, Monticello, 5 June, 1824, in Jefferson Writings, 1491.

[6] Russell Kirk, Enemies of the Permanent Things (New Rochelle: Arlington House, 1969), 27.

[7] Ibid., 28.

[8] For a detailed examination of plebiscitary democracy and standards, see Irving Babbitt, Democracy and Leadership (Indianapolis: Liberty Classics, 1924), 265-343.

[9] Dumas Malone, Jefferson and His Time, Volume 2,  Jefferson and the Rights of Man (Boston: Little Brown & Company, 1951), 111.

[10] Jefferson, “To Messrs. Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association, in the State of Connecticut,” 1 January, 1802, in Jefferson Writings, 510.

[11] See especially Everson v. Board of Education 330 U.S. 1, (1947).  Justice Black cites Jefferson letter to the Danbury Baptists to prop up his decision. The issue brought before the Court in Everson v. Board of Education was a New Jersey law which authorized reimbursement for parents’ out-of-pocket costs for their children’s transportation to and from parochial school.  The statute was challenged by Arch Everson, who led a group of Protestant parents concerned about the growing political influence of Roman Catholics. Though the Court was divided in its 5-4 decision which upheld the New Jersey law, both sides accepted the separation theory. The Court’s move towards strict separation was finalized in two school prayer cases: Engel v. Vitale, 370 U.S. 421 (1962) and Abington v. Schempp, 374 U.S. 203 (1963).

[12] Many constitutional scholars believe that Jefferson overstated the meaning of the Establishment Clause, noting that it simply denied the Federal Government to establish a national church, not that religion should be kept out of the public sphere.  See especially Robert Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1992); Michael McConnell, “Stuck With a Lemon,” in American Bar Association Journal. Vol. 83, February, 1997.

[13] Babbitt, 115.

[14] Ibid.,166-67.

[15] Michael Novak, On Cultivating Liberty (New York: Rowman and Littlefield, 1999), 10.

[16] Ibid., 14.

[17] Ibid., 20.

[18] Daniel Boorstin, Lost World of Thomas Jefferson (Boston: Beacon Press, 1948), 198.

[19] Jefferson to the Earl of Buchan, Washington, 10 July, 1803, in Jefferson Writings, 1134.

[20] Rousseau,The Social Contract,” 154.

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  1. Thank you for your time in writing this series. In stating that every twenty years the living should be able to change their constitution it couldn’t help think: would Jefferson have though it proper that the living should abandon sound, established political principles? It seems to me that in writing, “Every constitution, then, and every law, naturally expires at the end of 19 years”, is more of a call of renewal of good government than a wholesale abandonment of republican government. Imagine if we had the opportunity to sit down and renew the principles of the founding every twenty years? As it now stands we must wade through the complex and byzantine maze of laws that constitute government at both the national and state levels. I like you tend to cringe at the idea of changing the constitution every twenty years, seeing that it is fundamental law but the idea of seriously reviewing laws passed during the Great Society, the New Deal or any period of history is right. Of course these ideas would work better at a level of government closer to the people but it seems like once a law is passed it’s there to stay no matter how awful it is–

  2. My reply should have read: [In reading your post about Jefferson's idea] “that every twenty years the living should be able to change their constitution I couldn’t help think:”

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