Jefferson’s Proposed Revision of the Virginia Constitution
When Jefferson stopped off in Richmond in May on his way back to Monticello, his discussions with various political figures led him to the conclusion that a convention to revise the Virginia Constitution was imminent. No doubt remembering his experience in 1776 when his earlier draft of a fundamental law arrived almost too late, he lost no time in drafting a text for a new constitution. He arrived at Monticello on 15 May 1783 and in the next four weeks had completed the text of Document iii in the present series which he enclosed in his letter to Madison of 17 June. Though his impact upon the American constitutional experience was one of Jefferson’s most significant contributions, this was an indirect consequence of his principles rather than a direct effect of his attempts at constitution-drafting: his effort of 1783 produced even less concrete results than had that of 1776. The agitation for revision continued for years, but the Virginia Constitution of 1776 was not replaced until 1830. Nevertheless, Jefferson’s draft of 1783 is a significant document. With some violation of strict chronology, the editors have decided to present in one sequence the draft of a constitution itself and two other related documents.
For Jefferson’s objections to the Constitution of Virginia of 1776, see Vol. 1: 330, 373, 530ff. and, especially, his comments in Notes on the State of Virginia prefaced by the following remarks: “This constitution was formed when we were new and unexperienced in the science of government. It was the first, too, which was formed in the whole United States. No wonder then that time and trial have discovered very capital defects in it” (Ford, iii, 222–235). Among these the chief one that disturbed Jefferson was that all powers—legislative, executive, and judicial—were controlled by one body which, having power to alter the Constitution at will, caused Virginia polity to be “precisely the definition of despotic government.” From his point of view it made no difference that this power was vested in many hands that were elected rather than in one that was hereditary: this was “An elective despotism” and was not “the government we fought for.” Hence he thought it essential to form a new government “on free principles … in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others”; he conceded that the Convention of 1776 had approved the principle of separation of powers, but thought that no checks and balances providing effective barriers to a violation of the principle had been set up. It was equally essential, he felt, to protect these principles by a constitution that would precisely and unequivocally distinguish between fundamental and statute law, making the ordinary legislature competent for the latter only.
The Constitution of 1776 was indeed a mere ordinance, as was the accompanying Declaration of Rights. Jefferson had in many instances demonstrated his concern over this anomaly, but it particularly disturbed him that the Act for Establishing Religious Freedom, which touched “the natural rights of mankind,” could only be enacted as a statute and not as part of a fundamental law. To declare that Act irrevocable, he knew, would be of no effect in law; “yet we are free to declare,” he asserted, “and do declare, that … if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right” (Vol. 2: 546–7).
But this objection to the Constitution of 1776 rested largely on a legal distinction. Regardless of the manner of its adoption, that Constitution in actual practice was treated as a fundamental law, different in character and superior in authority to ordinary legislation. This was made plain in many ordinary acts of the legislative, executive, and judicial authority, both by implication and by expressly recognized derivation of powers. It was categorically affirmed in George Wythe’s famous obiter dictum in the case of Commonwealth v. Caton (4 Call 5–51). And more than once a similar affirmation was made by the Council while John Marshall was a member (1782–1784), though this fact was not noted in Beveridge’s Life of John Marshall in which Marshall’s very active, though brief, career as a Councillor was almost casually dismissed. On one occasion, for example, the Council was asked to remove from office one John Price Posey, a magistrate of New Kent county, on the ground that he “had been guilty of diverse gross misdemeanors, disgraceful to the Character which should be preserved by a Justice of the Peace.” In an opinion signed by Marshall and two other members of the Council, the Executive declared that “the Law authorizing the Executive to enquire into the Conduct of a Magistrate and determine whether he has or has not committed a certain act is repugnant to the Act of Government, contrary to the fundamental principles of our constitution, and directly opposite to the general tenor of our Laws.” In consequence, the Council refused to consider the complaint against Posey “unless the facts are found in a Court of justice” (MS Va. Council Jour., 20 Feb. 1783, Vi; but Posey was convicted of a misdemeanor in General Court on 10 Dec. 1783 and was therefore removed from the commission “pursuant to powers in such cases vested in the Executive by law”; same, 25 Oct. 1784).
Indeed, Jefferson admitted that, to a limited extent, the Virginia Constitution was regarded as a fundamental law. Though he felt that “a great proportion of the legislature consider the constitution but as other acts of legislation” and that in consequence “laws have been frequently passed which controuled it’s effect,” he was willing to concede that “there is a part of the state which considers the act for organising their government as a constitution and are content to let it remain.” He asserted nevertheless that “There is another part which considers it only as an ordinary act of the legislature, who therefore wish to form a real constitution, amending some defects which have been observed in the act now in force. Most of the young people as they come into office arrange themselves on this side, and I think they will prevail ere long. But there are no heats on this account” (TJ to Démeunier, Jan.-June, 1786).
Jefferson’s desire to “form a real constitution” was genuine enough, but his legislative and executive experience had strengthened and amplified his objections to the substance of the Constitution of 1776 as well as to its source of authority. A comparison of the present text with that proposed by Jefferson in 1776 (third draft, Vol. 1: 356–64) suggests the extent to which his ideas had been altered in the light of experience. The principle of separation of powers is made far more emphatic in phraseology, but departed from in such concrete provisions as those calling for a council of revision and for a court of impeachments. In respect to suffrage and number of representatives there was little alteration, but Jefferson’s hostility to the inequality of representation which gave to the Tidewater a disproportionate share in government, whereby “every man in Warwick has as much influence … as 17 men in Loudon,” was reflected in the provision that the number of representatives should be kept proportionate to the number of qualified electors. The district system for the election of senators was retained, but the manner of their election was taken from the House of Delegates and transferred to the electorate operating through senatorial electors. Elections were to be held triennially instead of annually. In the House of Delegates the number required for a quorum was reduced from two-thirds to a simple majority. No doubt recalling his experience in May 1781 when he had had to issue a special and extra-legal appeal to members of surrounding counties so that a sufficient number could be brought together to effect an adjournment to a safer place than Richmond, Jefferson provided that the Governor, with the advice of the Council, could call the legislature at a different time or place in case of danger “from an enemy or from infection.” Members’ pay was provided for in commodity values. The list of persons ineligible to election as members of the legislature was extended and made more specific. There was no bill of rights specifically designated as such, but the Declaration of Rights of 1776 would have presumably remained unrepealed under his 1783 constitution. In addition, the right of habeas corpus was affirmed and the legislature was specifically forbidden to pass certain laws. These included bills of attainder, with no such distinction as Jefferson attempted later in order to justify his own bill of attainder against Josiah Phillips (see Vol. 2: 189–93). They also included the essence but not the phraseology of the Bill for Establishing Religious Freedom. Ex post facto laws were forbidden, the slave trade was abolished, and gradual emancipation of slaves was provided for. Though his 1776 draft had included a proviso giving the lower house exclusive right in originating and amending bills “levying money” (Vol. 1: 359), Jefferson’s experience in the case of Thomas Johnson, wherein he defended the provisions of the Constitution of 1776 forbidding the Senate to alter such bills, no doubt caused him to anticipate the Constitution of 1830 by omitting such a restriction from his 1783 draft (see Vol. 2: 44). Probably because of his experience with Greene, Steuben, and other military commanders, TJ provided that the Governor should have direction of the militia and also state regulars and that the military should be subordinate to the civil power. The judiciary remained substantially the same, but the provision for a court of impeachments, in which the three branches of government were intermingled in function, was new. But it was in respect to the executive branch that Jefferson’s own experience was most evidently reflected. The term of office was extended from one to five years, and an interim ineligibility was made permanent. A broad delegation to the governor of “those powers … necessary to carry into execution the laws” and not by nature legislative or judicial was stipulated, some limitations being removed and the application of this general principle “left to reason.” The governor was still not vested with a veto power, but what amounted to such was placed in the hands of the council of revision. Jefferson’s experience was also strikingly reflected in the provisions concerning the functions of the council of state. No doubt recalling that in effect he alone had been held responsible for alleged faults of an administration in which the Governor and Council shared almost equally in the executive power, he reduced the Council virtually to the status of an advisory board, by implication thereby fixing both authority and responsibility in the single hands of the Governor. He must also have had in mind, as he drafted the proviso penalizing members of the Council for non-attendance, the dark days of the spring of 1781 when some members of Council resigned and almost none attended.
The legislature, of course, was denied “the power to infringe this constitution,” and in order to make certain that this was not attempted, Jefferson borrowed from the New York Constitution of 1777 with its Council of Revision. There is in DLC: TJ Papers: 233: 41791 a copy in Jefferson’s hand of that part of the New York Constitution providing that the governor, chancellor, and judges of the supreme court should constitute “a Council to revise all bills about to be passed into laws by the legislature” in order that “laws inconsistent with the spirit of this constitution, or with the public good” might not be “hastily and unadvisedly passed.” On the verso of this MS Jefferson outlined what was apparently an earlier adaptation of this device than the one he finally incorporated in the present text: “The Governour [and] two of the Chancellors, two of the [judges of the] General court, one of the [judges of the] Admiralty, to be chosen from among the rest by the Council of state.” The list of judges is bracketed in the MS while the governor is not, indicating that, following New York precedent, Jefferson intended that the quorum should always include that officer. To this notation he added the following which did not become a part of his final text: “each member intitled to assign his objections separately.” In the matter of the council of revision Jefferson followed the New York Constitution in substance though not in phraseology, the constituency of the council being the principal difference.
Another document that Jefferson must have had before him in drawing up the present text is to be found in DLC: TJ Papers, 10: 1569–71, presented here as Documents I and II. This set of instructions from the inhabitants of Albemarle was drawn up, as shown in the notes accompanying Document I, sometime during the late summer or autumn of 1776. Jefferson himself may possibly have participated in its drafting, as he did on at least one other occasion when he wrote but did not sign a petition from the Albemarle inhabitants (see under 24 Dec. 1798). Certainly there are striking similarities between the instructions and his draft of 1783, as for example the insistence in the former that “the fundamental Pillars of the Constitution should be comprised in one Act or Instrument, which should never be subject to alteration but with consent of the people at large.” In making no distinction as between the powers of the two houses of the legislature, Jefferson’s draft also is closer to the instructions than to his own proposed constitution of 1776. In respect to the appointment of county officers and in provisions safeguarding the freedom of the press, Jefferson’s draft differed from the instructions. Though there are phrases here and there in the instructions that have a Jeffersonian ring, the style for the most part is not his. In all likelihood his own draft constitution of 1783 was influenced by these views of the Albemarle inhabitants, but there is no evidence for regarding him as a co-author of the instructions.
Madison acknowledged receipt of Jefferson’s draft in his letter of 17 July 1783, but without comment. On 15 May 1784 he wrote that he expected to make use of Jefferson’s ideas in what he hoped was an imminent revision of the Constitution of 1776. This hope grew out of an agitation that continued from 1783 through 1785 and manifested itself in June 1784 in a petition from Augusta county that “touched on a Reform of the Government” (Madison to TJ, 3 July 1784). The members of the House of Delegates favoring revision seized this opportunity to bring the matter up for debate, but Patrick Henry opposed the move and nothing came of it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1784, 1828 edn., p. 55; Madison, Writings, ed. Hunt, ii, p. 54, 57–8, 65; Rives, Madison, i, 557–9). Several “Petitions from the Western side of the Blue ridge” later in 1784 called for revision of the Constitution, and Madison thought that the “friends of the undertaking seem to be multiplying rather than decreasing” (Madison to TJ, 9 Jan. 1785). Madison, however, did not make active use of Jefferson’s draft until 1788. By then the text drawn up in the 1783 draft had been printed as an Appendix to Notes on the State of Virginia and Madison’s “Observations” (Document iv) were based upon that printing rather than upon the MS version presented here. John Brown of Kentucky had shared quarters with Madison while in Congress and Madison may possibly have handed him the manuscript draft at that time (John Mason Brown, Political Beginnings of Kentucky, p. 149; Brown errs, however, in thinking that Jefferson’s draft was for a new constitution for Kentucky; same, p. 195, note). On 26 Aug. 1788 Brown wrote to Madison: “I will thank you … also (if your leisure will permit) for some remarks upon Jefferson’s plan of Govt. denoting such alterations as would render it more applicable to the District of Kentucky. These might be of the greatest consequence to that Country and if sent by Post will certainly reach me” (DLC: Madison Papers). Madison promised “forthwith [to] execute the request contained in your letter from Fort Pitt, and forward the remarks on Mr. Jefferson’s draft by the next mail” (Madison to Brown, 18 Oct. 1788, typescript copy in DLC: Madison Papers). No further correspondence between Brown and Madison appears on this subject, but it is clear that the “Observations” were made in 1788 and that they apply to the text of 1783, not, as stated by Hunt, to that of 1776 (Madison, Writings, ed. Hunt, v, 284–94).
In consequence, Madison’s comments should be viewed in the context of the later date and in the light of his purpose, which was to assist in the forming of the Kentucky constitution. He was therefore much more critical and in general less approving of Jefferson’s innovations than would have been likely if these comments had been drafted prior to Shays’ Rebellion, to the great debates of the Federal Convention of 1787, and to his participation in the authorship of The Federalist. A more contemporaneous comment by Madison on the Virginia Constitution of 1776 seems to show a greater degree of agreement with Jefferson and perhaps even a reliance on the present draft. This is to be found in his “Notes of Speech on Proposed Amendment to the Constitution of Virginia, June, 1784,” in which he pointed out the following objections to the Constitution which are also reflected in Jefferson’s draft: (1) the Convention of 1776 which drew it was “without due power from the people” and therefore the Constitution was like “other ordinances of same Session deemed alterable” by the legislature; (2) there was in it “a Union of powers which is tyranny”; (3) the Senate was “badly constituted and improperly barred of the originating of laws”; (4) “equality of representation [was] not provided for”; (5) “Impeachments [were] of great moment and on bad footing”; (6) “Habeas Corpus [was] omitted”; and (7) there was “no mode of expounding constitution and of course no check to Genl. Assembly” (Madison, Writings, ed. Hunt, ii, 54). The last objection seems to suggest that in 1784 Madison was not as hostile to the idea of review of legislation by the judiciary as he appears to be in the “Observations” of 1788.
Though Jefferson’s efforts to revise the Virginia Constitution in 1783 were fruitless, perhaps due to the hostility of Patrick Henry, some traces of his draft are to be found in the first Constitution of Kentucky (see note 10, Document iii). But the fundamental law of Kentucky was not adopted until seven years after the publication of Jefferson’s text and more than three years after Madison’s “Observations” had been sent to John Brown. The intervening time no doubt caused some of Jefferson’s innovations to seem even less attractive to Kentuckians than they had to Madison, and none is to be found in the Constitution of 1792—no council of revision, no court of impeachments, no council of state. The Supreme Court, however, was called “the Court of Appeals.” But the influence of the Federal Constitution and of the constitutions of other states, particularly the resolutions of various state conventions of 1788 calling for a bill of rights to be added to the former, is more apparent in the Kentucky Constitution than are traces of the proposed Virginia constitution drawn by Jefferson in 1783.