The Correspondence of Thomas Jefferson
By Subject
CONSTITUTION / UNITED STATES / BILL OF RIGHTS
In mentioning me in your Essays, and canvassing my opinions, you have
done what every man has a right to do, and it is for the good of
society that that right should be freely exercised. No republic has
more zeal than that of letters, and I am the last in principles, as I
am the least in pretensions, to any dictatorship in it Had I other
dispositions, the philosophical and dispassionate spirit with which
you have expressed your own opinions in opposition to mine, would
still have commanded my approbation. A desire of being set right in
your opinion, which I respect too much not to entertain that desire,
induces me to hazard to you the following observations. It had become
an universal and almost uncontroverted position in the several States,
that the purposes of society do not require a surrender of all our
rights to our ordinary governors,. that there are certain portions of
right not necessary to enable them to carry on an effective
government, and which experience has nevertheless proved they will be
constantly encroaching on, if submitted to them; that there are also
certain fences which. experience has proved peculiarly efficacious
against wrong, and rarely obstructive of right, which yet the
governing powers have ever shown a disposition to weaken and remove.
Of the first kind, for instance, is freedom of religion; of the
second, trial by jury, habeas corpus laws, free presses. These were
the settled opinions of all the States, of that of Virginia, of which
I was writing, as well as of the others. The others had, in
consequence, delineated these unceded portions of right, and these
fences against wrong, which they meant to exempt from the power of
their governors, in instruments called declarations of rights and
constitutions; and as they did this by conventions, which they
appointed for the express purpose of reserving these rights, and of
delegating others to their ordinary legislative, executive and
judiciary bodies, none of the reserved rights can be touched without
resorting to the people to appoint another convention for the express
purpose of permitting it. Where the constitutions then have been so
formed by conventions named for this express purpose, they are fixed
and unalterable but by a convention or other body to be specially
authorized; and they have been so formed by, I believe, all the
States, except Virginia. That State concurs in all these opinions, but
has run into the wonderful error that her constitution, though made by
the ordinary legislature, cannot yet be altered by the ordinary
legislature. I had, therefore, no occasion to prove to them the
expediency of a constitution alterable only by a special convention.
Accordingly, I have not in my notes advocated that opinion, though it
was and is mine, as it was and is theirs. I take that position as
admitted by them, and only proceed to adduce arguments to prove that
they were mistaken in supposing their constitution could not be
altered by the common legislature. Among other arguments I urge that
the convention which formed the constitution had been chosen merely
for ordinary legislation; that they had no higher power than every
subsequent legislature was to have; that all their acts are
consequently repealable by subsequent legislatures; that their own
practice at a subsequent session proved they were of this opinion
themselves; that the opinion and practice of several subsequent
legislatures had been the same, and so conclude "that their
constitution is alterable by the common legislature." Yet these
arguments urged to prove that their constitution is alterable, you
cite as if urged to prove that it
ought not to be alterable, and you combat them on that ground.
An argument which is good to prove one thing, may become ridiculous
when exhibited as intended to prove another thing. I will beg the
favor of you to look over again the passage in my notes, and am
persuaded you will be sensible that you have misapprehended the object
of my arguments, and therefore have combated them on a ground for
which they were not intended.
to Noah Webster, 4 December 1790
|