James Madison Papers

Observations on Jefferson’s Draft of a Constitution for Virginia, [ca. 15 October] 1788

Observations on Jefferson’s Draft of a
Constitution for Virginia

Editorial Note

During the 1780s JM twice communicated lengthy expositions of his constitutional ideas to friends in Kentucky who had solicited his advice in anticipation of that district’s separation from Virginia. The first commentary went to Caleb Wallace in the summer of 1785 (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , VIII, 350–57); the second was sent to John Brown in the fall of 1788. Brown had asked him to draft a plan of government for Kentucky in the spring of 1788, but JM refused to take on this additional task while preoccupied with the business of the Virginia ratifying convention. After the convention he accepted Brown’s request “for some remarks upon Jefferson plan of Govt. denoting such alterations as would render it more applicable to the District of Kentucky” (Brown to JM, 12 May and 26 Aug. 1788; JM to Brown, 27 May and 26 Sept. 1788). The plan referred to was the draft constitution for Virginia that Thomas Jefferson, foreseeing a revision of the constitution of 1776, had prepared in the spring of 1783 and later published as an appendix to his Notes on Virginia (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950—). description ends , VI, 278–317). JM sent his comments on Jefferson’s constitution to Brown in mid-October and later gave a copy to George Nicholas, who was soon to move to Kentucky (JM to Brown, 21 Jan. 1789; Nicholas to JM, 24 Jan. 1789). Although Brown and other Kentuckians expected to make immediate use of JM’s views in framing a government, statehood for Kentucky was delayed until 1792, and the constitution adopted by the Kentucky convention of that year bore few marks of JM’s influence.

In his constitution Jefferson sought to remedy what he believed to be grave defects in the Virginia Constitution of 1776: it had been issued as a mere ordinance by a body possessing legislative power only; the powers of government were concentrated in the House of Delegates, making a mockery of the constitution’s professed regard for Montesquieu’s famous maxim; representation was unequal, not being in proportion to the number of freeholders; and there was no provision for amending the constitution. JM fully concurred with Jefferson’s view that there were serious defects in the 1776 constitution, but he found much to criticize when asked to judge the merits of his friend’s draft as a proposed constitution for Kentucky in 1788. Although JM confined his remarks to those features he considered objectionable, there was scarcely a section that he did not find fault with; and one provision that he did not discuss here, the procedure for calling a convention to amend the constitution, had already come under his critical scrutiny in The Federalist No. 49 (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , X, 460–63).

In their long and close relationship the differences between JM and Jefferson on fundamental political and constitutional questions were perhaps never more sharply defined than during the latter half of the 1780s. The preceding year they had disagreed over JM’s proposal for a negative on state laws; during the present one they would express differing views on the necessity and efficacy of a bill of rights; and they soon would have a memorable exchange on Jefferson’s proposition that “the earth belongs to the living” (Jefferson to JM, 20 June 1787, and JM to Jefferson, 24 Oct. 1787 [PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , X, 64, 209–14]; JM to Jefferson, 17 Oct. 1788; Jefferson to JM, 15 Mar., 6 Sept. 1789, and JM to Jefferson, 4 Feb. 1790 [Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950—). description ends , XIV, 659–61; XV, 392–97; XVI, 147–50]).

JM’s Observations adopted the order and headings of the published version of Jefferson’s draft, beginning with the legislative department (Notes on Virginia [Peden ed.], pp. 209–22). The legislature Jefferson proposed consisted of a house of delegates elected for a one-year term by all free males and a senate elected for a two-year term by electors grouped into districts; those qualified to elect delegates were also qualified to vote for senatorial electors. Still deeply influenced by the “mixed” constitution of classical antiquity and English history, JM believed that the senate should be more sharply differentiated from the house of delegates. An American senate, to be sure, could not pretend to duplicate the English House of Lords, but it should be a dignified and responsible body, capable of checking the impulsive and erratic behavior of the popular branch. It should have at least a six-year term, as in the federal Constitution; this would promote stability and provide a genuine safeguard to republican liberty. He also objected to electing senators by districts because it fostered a “spirit of locality” and made senators too much like the members of the other branch: representatives of various parochial interests. If the senate was to be the repository of the general interest of the state, its members should be elected by the whole state.

As an additional means of differentiating the two branches of the legislature, JM urged separate suffrage qualifications. He agreed that the right to vote should be extensive in electing the house of delegates, but preferred a freehold requirement in senatorial elections. In arguing for such a distinction, JM confronted the fundamental problem of republican government, one that he grappled with throughout his life: how to reconcile majority rule, the vital principle of republicanism, with freedom and justice. He foresaw the day when freeholders would no longer be the dominant class in America and their rights, unless given a “defensive” protection in one of the legislative branches, would then be dangerously exposed to the whims of the property-less majority. His proposed middle way would secure the interests of both persons and property, “the two cardinal objects of Government.” Even though freeholders were likely to be a majority for many years to come, he believed the present opportunity should not be lost to establish property rights on a constitutional footing.

JM’s warning went unheeded in Kentucky, however, as well as in other states. In 1788 only the constitutions of North Carolina and New York stipulated different property qualifications for electing the two branches of the legislature. By 1821 North Carolina alone maintained such a distinction, but JM continued to advocate a more exclusive right of suffrage for one branch of the legislature. North Carolina should carry on its experiment “for no inconsiderable period,” he wrote, “until, in fact, the non-freeholders should be the majority.” How to balance the rights of persons and property was JM’s lifelong preoccupation, but his last word on the subject was a grudging acceptance of democracy: “And if the only alternative be between an equal and universal right of suffrage for each branch of the Government, and a confinement of the entire right to a part of the citizens, it is better that those having the greater interest at stake, namely, that of property and persons both, should be deprived of half their share in the Government, than that those having the lesser interest, that of personal rights only, should be deprived of the whole.” To be sure, he hoped that a choice between these two alternatives would not have to be made. On the other hand, if the advent of democracy was inevitable in America, he was optimistic that it would not be inimical to property rights. Even without the constitutional safeguard of suffrage qualifications, these rights would derive a security “from the ordinary influence possessed by property, and the superior information incident to its holders, from the popular sense of justice, enlightened and enlarged by a diffusive education, and from the difficulty of combining and effectuating unjust purposes throughout an extensive country” (Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , IV, 26–27).

Another principal defect of Jefferson’s constitution, JM believed, was that it failed to establish a proper balance of power among the three departments of government. The legislature, which was to appoint all the major offices, was still clearly superior to the executive and judiciary. He recommended the federal Constitution as the model to follow: the people, either directly or indirectly through electors, should elect the executive (who would be eligible for reelection), and the senate and governor should share the appointment of the major offices. The problem of maintaining an equilibrium of power was most delicate in the matter of impeachments. JM disliked the method prescribed in the federal Constitution, believing that the power of one branch of the legislature to impeach and the power of the other to try the impeachment left the president too dependent on Congress (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , II, 612). He approved of Jefferson’s proposal for a separate court of impeachments but suggested some rather complicated refinements to avoid the danger of combinations of two departments against the third.

JM reflected the same concern for creating a true balance of power within the government in his remarks on the council of revision, which in Jefferson’s draft was to be composed of members of the executive and judiciary and to have the power to reject bills passed by the legislature. This was a favorite idea of JM’s, which he had tried to write into the federal Constitution. Instead of a council, however, he now preferred that legislative bills be sent separately to the executive and judiciary departments for approval, a modification he had proposed late in the Federal Convention (ibid., II, 298). This would provide an additional check against unwise legislation while strengthening the independence of the executive and judiciary. Vesting these two departments with a revisionary power would help to correct the dangerous bias in favor of the legislature that characterized the republican governments of America.

In commenting on the council of revision JM touched briefly on the troublesome question of the judiciary’s power to pronounce a law unconstitutional. This was a subject he pondered on a number of occasions during his career, but in most of these JM was concerned with the relationship between the federal judiciary and the state governments. Here he consistently upheld the authority of the Supreme Court as the final constitutional arbiter in conflicts between the federal and state jurisdictions. Indeed, he believed this function of the highest court was absolutely necessary to maintain the supremacy of the federal government, an object he had originally hoped to achieve by means of a legislative veto over state laws (see, for example, The Federalist No. 39, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , X, 381; JM to Jefferson, 27 June 1823; JM to Joseph C. Cabell, 7 Sept. 1829; Notes on Nullification, 1835–36, Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , IX, 140–43, 348–49, 351, 605–7). A more vexing problem was the relationship between the judiciary and the other departments within the same government. Could a court declare an act of a coordinate legislature invalid on the grounds that it violated the constitution? In his Observations JM was clearly unsympathetic to the doctrine of judicial review in this sense, for it would make the judiciary “paramount in fact to the Legislature, which was never intended, and can never be proper.” One of the purposes of giving the judiciary a share in the revisionary power over legislative bills was to preclude “the question of a Judiciary annulment of Legislative Acts” (JM to James Monroe, 27 Dec. 1817, Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , VIII, 406–7). Once laws had successfully completed the revisionary process, such acts were to be irrevocable unless altered or repealed by the legislature itself.

American experience in both the federal and state governments subsequently saw judicial review triumph over executive and judicial revision. In time JM came to accept the Supreme Court’s unique and binding power in expounding the Constitution, but only in a limited sense. If the judiciary in fact had the last word, he wrote in 1799, its finality was only in relation to the other departments, “not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.” Judicial expositions of the Constitution might be binding for a particular case, but the people through legitimate action could effect a change in the political climate that would in time lead “to a change in the opinion of the judiciary” (Report on the Virginia Resolutions, 1799–1800, ibid., VI, 352, 402–3; Corwin, Court over Constitution, pp. 31–33, 44–45, 59–61). While always insisting that the three departments were coordinate, each deriving its authority from the people and exercising its functions according to its own interpretation of the Constitution, JM conceded that the “judicial bench, when happily filled,” was “the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members” (JM to ?, [1834?], Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , IV, 349–50).

[ca. 15 October 1788]

Observations on the “Draught of a Constitution for Virginia”

Senate. The term of two years is too short. Six years are not more than sufficient. A Senate is to withstand the occasional impetuosities of the more numerous branch. The members ought therefore to derive a firmness from the tenure of their places. It ought to supply the defect of knowledge and experience incident to the other branch, there ought to be time given therefore for attaining the qualifications necessary for that purpose. It ought finally to maintain that system and steadiness in public affairs without which no Government can prosper or be respectable. This cannot be done by a body undergoing a frequent change of its members. A Senate for six years will not be dangerous to liberty. On the contrary it will be one of its best guardians. By correcting the infirmities of popular Government, it will prevent that disgust agst. that form which may otherwise produce a sudden transition to some very different one.1 It is no secret to any attentive & dispassionate observer of the pol: Situation of the U. S. that the real danger to republican liberty has lurked in that cause.

The appointment of Senators by districts seems to be objectionable. A spirit of locality2 is inseparable from that mode. The evil is fully displayed in the County representations; the members of which are every where observed to lose sight of the aggregate interests of the Community, and even to sacrifice them to the interests or prejudices of their respective constituents. In general these local interests are miscalculated. But it is not impossible for a measure to be accomodated to the particular interests of every County or district, when considered by itself, and not so, when considered in relation to each other and to the whole State; in the same manner as the interests of individuals may be very different in a State of nature and in a Political Union. The most effectual remedy for the local biass is to impress on the minds of the Senators an attention to the interest of the whole Society by making them the choice of the whole Society, each citizen voting for every Senator. The objection here is that the fittest characters would not be sufficiently known to the people at large.3 But in free Governments, merit and notoriety of character are rarely separated, and such a regulation would connect them more and more together. Should this mode of election be on the whole not approved, that established in Maryland presents a valuable alternative. The latter affords perhaps a greater security for the selection of merit. The inconveniences chargeable on it are two: first that the Council of electors favors cabal. Against this the shortness of its existence is a good antidote. Secondly that in a large State the meeting of the Electors must be expensive if they be paid, or badly attended if the service be onerous. To this it may be answered that in a case of such vast importance, the expence which could not be great, ought to be disregarded. Whichever of these modes may be preferred, it cannot be amiss so far to admit the plan of districts as to restrain the choice to persons residing in different parts of the State. Such a regulation will produce a diffusive confidence in the Body, which is not less necessary than the other means of rendering it useful. In a State having large towns which can easily unite their votes the precaution would be essential to an immediate choice by the people at large. In Maryland no regard is paid to residence. And what is remarkable vacancies are filled by the Senate itself. This last is an obnoxious expedient and cannot in any point of view have much effect. It was probably meant to obviate the trouble of occasional meetings of the Electors. But the purpose might have been otherwise answered by allowing the unsuccessful candidates to supply vacancies according to the order of their standing on the list of votes, or by requiring provisional appointments to be made along with the positive ones. If an election by districts be unavoidable and the ideas here suggested be sound, the evil will be diminished in proportion to the extent given to the districts, taking two or more Senators from each district.

Electors. The first question arising here is how far property ought to be made a qualification. There is a middle way to be taken which corresponds at once with the Theory of free government and the lessons of experience. A freehold or equivalent of a certain value may be annexed to the right of vot[in]g for Senators, & the right left more at large in the election of the other House.4 Examples of this distinction may be found in the Constitutions of several States, particularly if I mistake not, of North Carolina & N. York.5 This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property.6 The former will be sufficiently guarded by one branch, the latter more particularly by the other. Give all power to property; and the indigent [will] be oppressed. Give it to the latter7 and the effect may be transposed. Give a defensive share to each and each will be secure. The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution. In all the Governments which were considered as beacons to republican patriots & lawgivers, the rights of persons were subjected to those of property. The poor were sacrificed to the rich. In the existing state of American population, & American property [,] the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer from the tendency of republican laws, that these different interests would be more and more identified. Experience and investigation have however produced more correct ideas on this subject. It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property. It must be foreseen that America, and Kentucky itself will by degrees arrive at this State of Society; that in some parts of the Union a very great advance is already made towards it. It is well understood that interest leads to injustice as well when the opportunity is presented to bodies of men, as to individuals; to an interested majority in a republic, as to the interested minority of any8 other form of Government. The time to guard agst. this danger is at the first forming of the Constitution, and in the present state of population when the bulk of the people have a sufficient interest in possession or in prospect to be attached to the rights of property, without being insufficiently attached to the rights of persons. Liberty not less than justice pleads for the policy here recommended. If all power be suffered to slide into hands not interested in the rights of property which must be the case whenever a majority fall under that description, one of two things cannot fail to happen; either they will unite against the other description and become the dupes & instruments of ambition, or their poverty & independence will render them the mercenary instruments of wealth. In either case liberty will be subverted; in the first by a despotism growing out of anarchy, in the second, by an oligarchy founded on corruption.

The second question under this head is whether the ballot be not a better mode than that of voting viva voce. The comparative experience of the States pursuing the different modes is in favor of the first. It is found less difficult to guard against fraud in that, than against bribery in the other.

Exclusions. Does not the exclusion of Ministers of the Gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? Does it not violate another article of the plan itself which exempts religion from the cognizance of Civil power? Does it not violate justice by at once taking away a right and prohibiting a compensation for it. And does it not in fine violate impartiality by shutting the door agst the Ministers of one religion and leaving it open for those of every other.

The re-eligibility of members after accepting offices of profit is so much opposed to the present way of thinking in America that any discussion of the subject would probably be a waste of time.

Limits of power. It is at least questionable whether death ought to be confined to “Treason and murder.” It would not therefore be prudent to tie the hands of Government in the manner here proposed. The prohibition of pardon, however specious in theory would have practical consequences, which render it inadmissible. A single instance is a sufficient proof. The crime of treason is generally shared by a number, and often a very great number. It would be politically if not morally wrong to take away the lives of all,9 even if every individual were equally guilty. What name would be given to a severity which made no distinction between the legal & the moral offence—between the deluded multitude, and their wicked leaders. A second trial would not avoid the difficulty; because the oaths of the jury would not permit them to hearken to any voice but the inexorable voice of the law.

The power of the Legislature to appoint any other than their own officers departs too far from the Theory which requires a separation of the great Depts of Government. One of the best securities against the creation of unnecessary offices or tyrannical powers, is an exclusion of the authors from all share in filling the one, or influence in the execution of the others. The proper mode of appointing to offices will fall under another head.

Executive Governour. An election by the Legislature is liable to insuperable objections. It not only tends to faction intrigue and corruption, but leaves the Executive under the influence of an improper obligation to that department. An election by the people at large, as in this10 & several other States—or by Electors as in the appointment of the Senate in Maryland, or indeed by the people through any other channel than their legislative representatives, seems to be far preferable. The ineligibility a second time, though not perhaps without advantages, is also liable to a variety of strong objections. It takes away one powerful motive to a faithful & useful administration, the desire of acquiring that title to a re-appointment. By rendering a periodical change of men necessary, it discourages beneficial undertakings which require perseverance and system, or, as frequently happened in the Roman Consulate, either precipitates or prevents the execution of them. It may inspire desperate enterprizes for the attainment of what is not attainable by legitimate means. It fetters the judgment and inclination of the Community; and in critical moments would either produce a violation of the Constitution, or exclude a choice which might be essential to the public safety. Add to the whole, that by putting the Executive Magistrate in the situation of the tenant of an unrenewable lease, it would tempt him to neglect the constitutional rights of his department, and to connive at usurpations by the Legislative department, with which he may connect his future ambition or interest.

The clause restraining the first Magistrate from the immediate command of the military force would be made better by excepting cases in which he should receive the sanction of the two branches of the Legislature.

Council of State. The following variations are suggested. 1. The election to be made by the people immediately, or thro’ some other medium than the Legislature. 2. A distributive choice should perhaps be secured as in the case of the Senate. 3 instead of an ineligibility a second time, a rotation as in the federal Senate, with an abrdgmt. of the term to be substituted.

The appointment to offices is, of all the functions of Republican & perhaps every other form of Government, the most difficult to guard against abuse. Give it to a numerous body, and you at once destroy all responsibility, and create a perpetual source of faction and corruption. Give it to the Executive wholly, and it may be made an engine of improper influence and favoritism. Suppose the power were divided thus: let the Executive alone make all the subordinate appointments; and the Govr. and Senate as in the Fedl. Constn:, those of the superior order. It seems particularly fit that the Judges, who are to form a distinct department should owe their offices partly to each of the other departments rather than wholly to either.

Judiciary. Much detail ought to [be] avoided in the constitutional regulation of this department, that there may be room for changes which may be demanded by the progressive changes in the state of our population.11 It is at least doubtful whether the number of Courts, the number of Judges, or even the boundaries of Jurisdiction ought to be made unalterable but by a revisal of the Constitution. The precaution seems no otherwise necessary than as it may prevent sudden modifications of the establishment, or addition of obsequious Judges, for the purpose of evadg. the checks of the Constn. & giv[in]g effect to some sinister policy of the Legisre. But might not the same object be otherwise attained? By prohibiting, for example, any innovations in those particulars without the consent of that department: or 12 without the annual sanction of two or three successive assemblies; over & above the other pre-requisites to the passage of a law.

The model here proposed for a Court of Appeals is not recommended by experience. It is found as might well be presumed that the members are always warped in their appellate decisions by an attachment to the principles and jurisdiction of their respective Courts13 & still more so by the previous decision on the case removed by appeal. The only effectual cure for the evil, is to form a Court of Appeals, of distinct and select Judges. The expence ought not be admitted as an objection. 1. because the proper administration of Justice is of too essential a nature to be sacrificed to that consideration. 2. The number of inferior Judges might in that case be lessened. 3. The whole department may be made to support itself by a judicious tax on law proceedings.

The excuse for non-attendance would be a more proper subject of enquiry some where else than in the Court to which the party belonged. Delicacy, mutual connivance &c. would soon reduce the regulation to mere form; or if not, it might become a disagreeable source of little irritations among the members. A certificate from the local Court or some other local authority where the party might reside or happen to be detained from his duty, expressing the cause of absence as well as that it was judged to be satisfactory, might be safely substituted. Few Judges would improperly claim their wages, if such a formality stood in the way. These observations are applicable to the Council of State.

A Court of Impeachments is among the most puzzling articles of a republican Constitution; and it is far more easy to point out defects in any plan, than to supply a cure for them. The diversified expedients adopted in the Constitutions of the several States prove how much the compilers were embarrassed on this subject. The plan here proposed varies from all of them; and is perhaps not less than any a proof of the difficulties which pressed the ingenuity of its author. The remarks arising on it are 1. that it seems not to square with reason, that the right to impeach should be united to that of trying the impeachment, & consequently in a proportional degree, to that of sharing in the appointment of, or influence on the Tribunal to which the trial may belong.14 2. As the Executive & Judiciary would form a majority of the Court, and either have a right to impeach, too much might depend on a combination of these departments. This objection would be still stronger, if the members of the Assembly were capable as proposed of holding offices, and were amenable in that capacity to the Court. 3. The H. of Delegates and either of those departments could appt. a majority of the Court. Here is another danger of combination, and the more to be apprehended as that branch of the Legisl: wd. also have the right to impeach, a right in their hands of itself sufficiently weighty; and as the power of the Court wd. extend to the head of the Ex. by whose independence the constitutil. rights of that department are to be secured agst. Legislative usurpations. 4. The dangers in the two last cases would be still more formidable; as the power extends not only to deprivation; but to future incapacity of office. In the case of all officers of sufficient importance to be objects of factious persecution, the latter branch of power is in every view of a delicate nature. In that of the Cheif Magistrate, it seems inadmissible, if he be chosen by the Legislature; and much more so, if immediately by the people themselves. A temporary incapacitation is the most that cd. be properly authorised.

The 2 great desiderata in a Court of impeachts. are 1. impartiality. 2. respectability—the first in order to a right—the second in order to a satisfactory decision. These characteristics are arrived at in the following modification—Let the Senate be denied the right to impeach. Let ⅓ of the members be struck out, by alternate nominations of the prosecutors & party impeached; the remaining ⅔ to be the Stamen15 of the Court. When the H: of Del: impeach, let the Judges or a certain proportion of them—and the Council of State be associated in the trial.16 When the Govr. or Council impeaches, let the Judges only be associated: When the Judges impeach let the Council only be associated. But if the party impeached by the H. of Dels. be a member of the Ex. or Judicy. let that of which he is a member not be associated. If the party impeached belong to one & be impeached by the other of these branches, let neither of them be associated, the decision being in this case left with the Senate alone or if that be thought exceptionable, a few members might be added by the H. of Ds. ⅔ of the Court should in all cases be necessary to a conviction, & the cheif Magistrate at least17 should be exempt from a sentence of perpetual if not of temporary incapacity. It is extremely probable that a critical discussion of this outline may discover objections which do not occur. Some do occur; but appear not to be greater than are incident to any different modification of the Tribunal.

The establishment of trials by Jury & viva voce testimony in all18 cases and in all19 Courts, is to say the least a delicate experiment; and would most probably be either violated, or be found inconvenient.

Council of Revision. A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceived be more effectually secured, without disarming the Legislature of its requisite authority, by requiring bills to be separately communicated to the Exec: & Judicy. depts. If either of these object, let ⅔, if both ¾ of each House be necessary to overrule the objection; and if either or both protest agst. a bill as violating the Constitution, let it moreover be suspended, notwithstanding the overruling proportion of the Assembly, until there shall have been a subsequent election of the H. of Ds. and a repassage of the bill by ⅔ or ¾ of both Houses, as the case may be. It sd. not be allowed the Judges or the Ex to pronounce a law thus enacted, unconstitul. & invalid.

In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.

The extension of the Habs. Corps. to the cases in which it has been usually suspended, merits consideration at least. If there be emergences which call for such a suspension, it can have no effect to prohibit it, because the prohibition will assuredly give way to the impulse of the moment; or rather it will have the bad effect of facilitating other violations that may be less necessary. The Exemption of the press from liability in every 20 case for true facts,21 is also an innovation and as such ought to be well considered. This essential branch of liberty is perhaps in more danger of being interrupted by local tumults, or the silent awe of a predominant party, than by any direct22 attacks of Power.

Draft (DLC); copy (ICU). The DLC draft, containing numerous deletions and interlineations, was retained by JM and endorsed: “Remarks on Mr. Jeffersons draught of a Constitution—sent from N. York to Mr. Brown Ocr. 1788—see his letters to J. M. on the subject.” JM made at least two fair copies: one for John Brown, which has not been found; the other for George Nicholas, now at the University of Chicago (JM to Brown, 21 Jan. 1789; Nicholas to JM, 24 Jan. 1789). At the top of the copy for Nicholas (ICU copy) JM wrote: “Extract from a letter of Ocr. 1788 to J. Brown Esqr. containing observations on the ‘Draught of a Constitution’ annexed to Mr. Jefferson’s notes on Virginia.” The dating of the Ms is based on JM’s statement in his letter to Brown of 12 Oct. 1788 that he would send his observations “by the next mail.” The southern mail left New York three times a week (Monday, Wednesday, and Friday). If the 12 Oct. letter was posted Monday, 13 Oct., then JM probably sent his observations on Wednesday, 15 Oct. (New-York Directory, 1789, p. 134). The editors have noted significant alterations JM made in the DLC draft. In transcribing the ICU copy from the DLC draft, JM made numerous changes in phraseology, most of which have not been noted.

1At this point JM deleted: “The experience of every State in the Union proves that the real danger to liberty lurks in a mistaken zeal for too much liberty.”

2Not underlined in the ICU copy.

3At this point JM deleted: “especially in an extensive State.”

4The preceding sentence originally read: “A freehold of moderate value may be annexed to the vote for Senators, and property of considerable value to a scat in the Senate; whilst the right of suffrage and of representation may be left on a broader foundation for the other branch of the Legislature.” In transcribing the corrected version JM made further slight changes. The ICU copy begins: “A freehold or an equivalent property may confer the right of voting for Senators …”

5In New York, adult male county residents possessing a freehold of £20 or renting a tenement of 40 shillings annual value were entitled to vote for representatives; only freeholders with estates of the value of £100 and above could vote for senators. In North Carolina, adult male taxpayers were eligible to vote for members of the House of Commons and those with fifty-acre freeholds could vote for members of the Senate (Thorpe, Federal and State Constitutions, V, 2630–31, 2790).

JM deleted the following passage at this point: “It is of more importance to annex the qualification of property to the elector than to the Senator, if not annexed to both, for several reasons. 1. because it is more easy for the latter than for any considerable proportion of the former to evade the rule. The practice in England is a sufficient proof of this. 2 because the electors in that case will generally prefer men of property. 3. because in all great and interesting questions the sense of the constituents will be sure to predominate in the vote of the Representatives.”

6The ICU copy reads “rights of things.”

7The ICU copy reads “indigent.”

8Here JM deleted “Aristocracy.”

9This word underlined in ICU copy.

10At a later time JM placed an asterisk here and wrote at the bottom of the page: “*N-York where these remarks were penned.” In the ICU copy JM wrote: “as in this State [N. York] and in several others.”

11In the ICU copy the second clause of this sentence reads: “in order that there may be room for the changes demanded by the varying state of Society, as well as by the light of experience.”

12The preceding seven words are omitted in the ICU copy.

13JM interlined the remainder of this sentence. He omitted the interlined part in the ICU copy.

14At this point JM deleted the following passage: “2. the liability of the members of the Legislature for their conduct in office, to any others than their respective Houses & Constituents. This would be a serious innovation on an established doctrine of liberty. It might hold the Parliamentary leaders in a very improper & dangerous awe of the other branches of Govt. A combination of the Executive & Judiciary—of the Senate & the latter.”

15Not underlined in the ICU copy.

16The preceding three words are omitted in the ICU copy.

17The preceding two words are not underlined in the ICU copy.

18Underlined at a later time; not underlined in the ICU copy.

19Underlined at a later time; not underlined in the ICU copy.

20This word underlined in the ICU copy.

21The preceding two words are not underlined in the ICU copy. JM here deleted “tending to unnecessary provocations &c.”

22JM here deleted “& deliberate,” but included the phrase in the ICU copy.

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