Jefferson’s Proposal to Rectify Constitutional Errors and Abuses by Appealing to the People Is Brilliant in Theory, but Defective in Practice
Jefferson’s Notes on the State of Virginia appends the draft he prepared in 1783 for a convention to establish a constitution for that Commonwealth.
Like everything from the same pen, the plan marks a turn of thinking that is at once original, comprehensive, and accurate.
It is even more worthy of attention as it displays a fervent attachment to representative government and an equally enlightened view of the dangerous propensities against which it ought to be guarded.
His ultimate palladium to the weaker departments of power against the invasions of the stronger is this: “Whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose.”
Under the representative theory of government, he reasons, the People are the only legitimate source of power, and the several branches of government derive and hold their power from the constitutional charter approved by them.
Since the several departments are perfectly coordinate by the terms of their common commission, none of them can pretend to an exclusive or superior right of settling the boundaries between their respective powers.
Returning to the original authority of the People is thus necessary not only to enlarge, diminish, or remodel the powers of the government, but also when any one of the departments commits encroachments on the chartered authorities of the others.
How else are the encroachments of the stronger to be prevented – or the wrongs of the weaker to be redressed – without an appeal to the People themselves – the original grantors of the commissions – who alone can declare its true meaning, and enforce its observance?
There is great force in this reasoning.
A constitutional road to the decision of the People ought to be marked out and kept open for use on certain great and extraordinary occasions.
But there are fatal objections against returning to the People in all cases in order to keep the several departments of power within their constitutional limits.
The reason of man – like man himself – is timid and cautious when left alone. The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion. When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater.
Jefferson’s Plan Would Allow Two Departments to Conspire Successfully Against the Third
In the first place, the provision will not apply where two of the departments combine against the third.
The legislative authority possesses many means of operating on the motives of the other departments. (See Federalist 48.)
Should it be able to gain the interest of only one of the other two – or even one third of its members – the remaining department could not utilize this remedial provision.
Any Appeal to the People Implies a Constitutional Defect, and Frequent Appeals Will Undermine Public Faith in and Support for the Federal Government
The reason of man – like man himself – is timid and cautious when left alone.
The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion.
When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater.
All governments ultimately depend upon opinion.
Every appeal to the People would imply some defect in the Federal government, and frequent appeals would greatly deprive it of that veneration which time bestows on everything, and without which the wisest and freest governments would not possess the requisite stability.
In a nation of philosophers, we could disregard this consideration.
A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason.
But a nation of philosophers is as unlikely as Plato’s philosophical race of kings.
In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side.
Frequent Referrals to the People Would Stir Passions, Embolden Factions, and Threaten Public Tranquility
A still more serious objection against frequently referring constitutional questions to the whole society is the danger to public tranquility arising from public passions too strongly stirred.
The Constitution for the United States – like the several State constitutions – was created in circumstances which repressed those passions most unfriendly to order and concord.
A universal resentment and indignation against the old governments produced a universal ardor for new and opposite forms.
An enthusiastic confidence of the People in their patriotic leaders stifled the diversity of opinions ordinarily expressed on great national questions.
The spirit of party was unconnected to the changes to be made and the abuses to be reformed, and thus did not mingle its leaven in the preparation.
The virtue and intelligence of the People of America triumphed.
No equivalent security against these dangers is likely to exist in future situations where revisions to this ingenious agreement are proposed.
A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason. But a nation of philosophers is as unlikely as Plato’s philosophical race of kings. In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side.
Rather than Hindering a Majority Faction, Referrals to the People Would Probably Aid It
The greatest objection to referring any constitutional question to the People is that it would fail to restore the constitutional equilibrium of the government.
In representative governments, the legislature – in our case the Congress – tends to aggrandize the powers of the executive and judicial departments, as I explained in Federalist 48.
Appeals to the People would therefore usually be made by the executive and judicial departments.
Would either enjoy equal advantages with the legislature on the issue referred?
Let us view their different situations.
Congress Has More Influence than the President or the Courts
The members of the executive and judicial departments are few in number and personally known only to a small part of the People.
Judicial members – by the mode and permanency of their appointment – are too far removed from the People to share much in their prepossessions.
Executive officers are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular.
On the other hand, the members of legislative department are numerous.
They are distributed and dwell among the People at large. Their connections of blood, friendship, and acquaintance embrace a great proportion of the most influential part of the society.
The nature of their public trust creates a personal influence among the People, who generally view them as the immediate and confidential guardians of their rights and liberties.
With such advantages, the executive or judiciary would have less than an equal chance for a favorable outcome.
A Convention Would Likely Consist of Those Whose Errors Were Being Reviewed
Aside from being able to plead their cause most successfully with the People, members of Congress would themselves probably be constituted the judges.
The same influence which had gained them an election into the Congress would gain them a seat in the convention.
This would be the case with many representatives and senators, and certainly with those leading characters on whom everything depends in such bodies.
Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged.
They would thus be parties to the very question to be decided by them.
Even in Cases of Clear Constitutional Error, Parties and Factions Would Infect Any Convention
It might sometimes happen that appeals would be made under circumstances less adverse to the executive and judicial departments.
The usurpations of the Congress might be so flagrant and so sudden as to admit of no specious coloring.
A strong party in the Congress might side with the other branches.
The executive power might be in the hands of a popular favorite of the People.
In such a posture of things, the public might be less swayed by arguments in favor of the dominant congressional party.
Even so, we can never expect that any constitutional convention would turn on the true merits of the question.
It would inevitably be connected with the spirit of preexisting parties, or of parties springing out of the question itself.
It would be connected with persons of distinguished character and extensive influence in the community.
It would be pronounced by the very persons who were the agents or opponents of the measures under review.
The passions of the People would sit in judgment, not its reason.
The government ought to be controlled by the reason of the People, not its passions.
For its part, the government ought to temper the passions of the People.
Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged. They would thus be parties to the very question to be decided by them.
In Federalist 48, I explained why mere declarations in written constitutions are insufficient to restrain the several departments within their legal rights.
I explained why occasional appeals to the People would be neither proper nor effectual.
As for the other provisions of Mr. Jefferson’s draft constitution, some are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.
Madison