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| Interpreting the Constitution |
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The purpose of a written
constitution is entirely defeated if, in interpreting it as a legal document, its
provisions are manipulated and worked around so that the document means whatever the
manipulators wish. Jefferson recognized this danger and spoke out constantly for careful
adherence to the Constitution as written, with changes to be made by amendment, not by
tortured and twisted interpretations of the text.
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"Our peculiar
security is in the possession of a written Constitution. Let us not make it a blank paper
by construction." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419
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"Where a constitution, like
ours, wears a mixed aspect of monarchy and republicanism, its citizens will naturally
divide into two classes of sentiment, according as their tone of body or mind, their
habits, connections and callings, induce them to wish to strengthen either the monarchical
or the republican features of the constitution. Some will consider it as an elective
monarchy, which had better be made hereditary, and therefore endeavor to lead towards that
all the forms and principles of its administration. Others will view it as an energetic
republic, turning in all its points on the pivot of free and frequent elections."
--Thomas Jefferson to James Sullivan, 1797. ME 9:377
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"The Constitution to which
we are all attached was meant to be republican, and we believe to be republican according
to every candid interpretation. Yet we have seen it so interpreted and administered, as to
be truly what the French have called, a monarchie masque." --Thomas Jefferson
to Robert R. Livingston, 1800. ME 10:177
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With Plain, Ordinary Understanding
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"Laws are made for men of
ordinary understanding and should, therefore, be construed by the ordinary rules of common
sense. Their meaning is not to be sought for in metaphysical subtleties which may make
anything mean everything or nothing at pleasure." --Thomas Jefferson to William
Johnson, 1823. ME 15:450
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"Common sense [is] the
foundation of all authorities, of the laws themselves, and of their construction."
--Thomas Jefferson: Batture at New Orleans, 1812. ME 18:92
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"The Constitution on which
our Union rests, shall be administered by me [as President] according to the safe and
honest meaning contemplated by the plain understanding of the people of the United States
at the time of its adoption--a meaning to be found in the explanations of those who
advocated, not those who opposed it, and who opposed it merely lest the construction
should be applied which they denounced as possible." --Thomas Jefferson: Reply to
Address, 1801. ME 10:248
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"I do then, with sincere
zeal, wish an inviolable preservation of our present federal Constitution, according to
the true sense in which it was adopted by the States, that in which it was advocated by
its friends, and not that which its enemies apprehended, who therefore became its
enemies." --Thomas Jefferson to Elbridge Gerry, 1799. ME 10:76
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When Two Meanings Are Possible |
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"It is a rule, where
expressions are susceptible of two meanings, to recur to other explanations. Good faith is
in favor of this recurrence." --Thomas Jefferson to William Short, 1791. ME 8:186
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"Whenever the words of a law
will bear two meanings, one of which will give effect to the law, and the other will
defeat it, the former must be supposed to have been intended by the Legislature, because
they could not intend that meaning, which would defeat their intention, in passing that
law; and in a statute, as in a will, the intention of the party is to be sought
after." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:110
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"It was understood to be a
rule of law that where the words of a statute admit of two constructions, the one just and
the other unjust, the former is to be given them." --Thomas Jefferson to Isaac
McPherson, 1813. ME 13:326
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"When an instrument admits
two constructions, the one safe, the other dangerous, the one precise, the other
indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of
power from the nation, where it is found necessary, than to assume it by a construction
which would make our powers boundless." --Thomas Jefferson to Wilson Nicholas, 1803.
ME 10:418
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"Where a phrase is
susceptible of two meanings, we ought certainly to adopt that which will bring upon us the
fewest inconveniences." --Thomas Jefferson: Opinion on Apportionment Bill, 1792. ME
3:208
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"The general rule [is] that
an instrument is to be so construed as to reconcile and give meaning and effect to all its
parts." --Thomas Jefferson to -----, 1816. ME 14:445
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"In every event, I would
rather construe so narrowly as to oblige the nation to amend, and thus declare what powers
they would agree to yield, than too broadly, and indeed, so broadly as to enable the
executive and the Senate to do things which the Constitution forbids." --Thomas
Jefferson: The Anas, 1793. ME 1:408
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The Intention of the Lawgivers
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"The government will
certainly decide for itself on whose counsel they will settle the construction of the laws
they are to execute. We are to look at the intention of the Legislature, and to carry it
into execution while the lawyers are nibbling at the words of the law." --Thomas
Jefferson to Albert Gallatin, 1808. ME 12:168
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"The [legislature's] laws
have always some rational object in view; and are so to be construed as to produce order
and justice." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:122
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"In the construction of a
law, even in judiciary cases of meum et tuum, where the opposite parties have a
right and counterright in the very words of the law, the Judge considers the intention of
the lawgiver as his true guide, and gives to all the parts and expressions of the law,
that meaning which will effect, instead of defeating, its intention. But in laws merely
executive, where no private right stands in the way, and the public object is the interest
of all, a much freer scope of construction, in favor of the intention of the law, ought to
be taken, and ingenuity ever should be exercised in devising constructions which may save
to the public the benefit of the law. Its intention is the important thing: the means of
attaining it quite subordinate." --Thomas Jefferson to William H. Cabell, 1807. ME
11:318
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"The true key for the
construction of everything doubtful in a law is the intention of the law-makers. This is
most safely gathered from the words, but may be sought also in extraneous circumstances
provided they do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
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"On every question of
construction carry ourselves back to the time when the Constitution was adopted, recollect
the spirit manifested in the debates and instead of trying what meaning may be squeezed
out of the text or invented against it, conform to the probable one in which it was
passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449
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"Strained constructions...
loosen all the bands of the Constitution." --Thomas Jefferson to George Ticknor,
1817. FE 10:81
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"One single object... [will
merit] the endless gratitude of society: that of restraining the judges from usurping
legislation." --Thomas Jefferson to Edward Livingston, 1825. ME 16:113
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Furthering the Principal Object
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"It often happens that, the
Legislature prescribing details of execution [of a law], some circumstance arises,
unforeseen or unattended to by them, which would totally frustrate their intention, were
their details scrupulously adhered to and deemed exclusive of all others. But
constructions must not be favored which go to defeat instead of furthering the principal
object of their law, and to sacrifice the end to the means. It being as evidently their
intention that the end shall be attained as that it should be effected by any given means,
if both cannot be observed, we are equally free to deviate from the one as the other, and
more rational in postponing the means to the end." --Thomas Jefferson to William H.
Cabell, 1807. ME 11:319
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"It is not honorable to take
a mere legal advantage, when it happens to be contrary to justice." --Thomas
Jefferson: Opinion on Debts due to Soldiers, 1790. ME 3:25
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"[There are] cases which,
though within the words of the law, [are] notoriously not within its intention, and
are therefore relievable by an equitable exercise of discretionary power." --Thomas
Jefferson to Albert Gallatin, 1808. ME 12:173
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"It is a maxim of our
municipal law, and, I believe, of universal law, that he who permits the end,
permits of course the means, without which the end cannot be effected."
--Thomas Jefferson to Albert Gallatin, 1808. ME 12:18
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Limited by the Separation of Powers
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"The capital and leading
object of the Constitution was to leave with the States all authorities which respected
their own citizens only and to transfer to the United States those which respected
citizens of foreign or other States; to make us several as to ourselves, but one as to all
others. In the latter case, then, constructions should lean to the general jurisdiction if
the words will bear it, and in favor of the States in the former if possible to be so
construed." --Thomas Jefferson to William Johnson, 1823. ME 15:448
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"Among the purposes to which
the Constitution permits [Congress] to apply money, the granting premiums or bounties is
not enumerated, and there has never been a single instance of their doing it, although
there has been a multiplicity of applications. The Constitution has left these
encouragements to the separate States." --Thomas Jefferson to Dr. Maese, 1809. ME
12:231
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"[The Constitution]
specifies and delineates the operations permitted to the federal government and gives all
the powers necessary to carry these into execution. Whatever of these enumerated objects
is proper for a law, Congress may make the law; whatever is proper to be executed by way
of a treaty, the President and Senate may enter into the treaty; whatever is to be done by
a judicial sentence, the judges may pass the sentence." --Thomas Jefferson to Wilson
Nicholas, 1803. ME 10:419
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"In giving to the President
and Senate a power to make treaties, the Constitution meant only to authorize them to
carry into effect, by way of treaty, any powers they might constitutionally
exercise." --Thomas Jefferson: The Anas, 1793. ME 1:408
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"Surely the President and
Senate cannot do by treaty what the whole government is interdicted from doing in any
way." --Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442
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"We conceive the
constitutional doctrine to be, that though the President and Senate have the general power
of making treaties, yet wherever they include in a treaty matters confided by the
Constitution to the three branches of Legislature, an act of legislation will be requisite
to confirm these articles, and that the House of Representatives, as one branch of the
Legislature, are perfectly free to pass the act or to refuse it, governing themselves by
their own judgment whether it is for the good of their constituents to let the treaty go
into effect or not." --Thomas Jefferson to James Monroe, 1796. ME 9:329
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"I was glad... to hear it
admitted on all hands, that laws of the United States, subsequent to a treaty, control its
operation, and that the Legislature is the only power which can control a treaty. Both
points are sound beyond doubt."--Thomas Jefferson to James Madison, 1798. ME 10:41
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"According to the rule
established by usage and common sense, of construing one part of the instrument by
another, the objects on which the President and Senate may exclusively act by treaty are
much reduced, but the field on which they may act with the sanction of the Legislature is
large enough; and I see no harm in rendering their sanction necessary, and not much harm
in annihilating the whole treaty-making power, except as to making peace." --Thomas
Jefferson to James Madison, 1796. ME 9:330
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Limited vs. Universal Powers |
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"I say... to the opinion of
those who consider the grant of the treaty-making power as boundless: If it is, then we
have no Constitution. If it has bounds, they can be no others than the definitions of the
powers which that instrument gives." --Thomas Jefferson to Wilson Nicholas, 1803. ME
10:419
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"The construction applied...
to those parts of the Constitution of the United States which delegate to Congress a power
"to lay and collect taxes, duties, imports, and excises, to pay the debts, and
provide for the common defence and general welfare of the United States," and
"to make all laws which shall be necessary and proper for carrying into execution the
powers vested by the Constitution in the government of the United States, or in any
department or officer thereof," goes to the destruction of all limits prescribed to
[the General Government's] power by the Constitution... Words meant by the instrument to
be subsidiary only to the execution of limited powers ought not to be construed as
themselves to give unlimited powers, nor a part to be so taken as to destroy the whole
residue of that instrument." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME
17:385
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"To lay taxes to provide for
the general welfare of the United States, that is to say, "to lay taxes for
the
purpose
of providing for the general welfare." For the laying of taxes is the power,
and the general welfare the purpose for which the power is to be exercised. They
are not to lay taxes ad libitum for any purpose they please; but only
to pay the
debts or provide for the welfare of the Union."
--Thomas Jefferson: Opinion on
National Bank, 1791. ME 3:147
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"Aided by a little sophistry
on the words "general welfare," [the federal branch claim] a right to do not
only the acts to effect that which are specifically enumerated and permitted, but
whatsoever they shall think or pretend will be for the general welfare." --Thomas
Jefferson to William Branch Giles, 1825. ME 16:147
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"They are not
to do
anything they please
to provide for the general welfare, but only to lay taxes
for that purpose. To consider the latter phrase not as describing the purpose of the
first, but as giving a distinct and independent power to do any act they please which
might be for the good of the Union, would render all the preceding and subsequent
enumerations of power completely useless. It would reduce the whole instrument to a single
phrase, that of instituting a Congress with power to do whatever would be for the good of
the United States; and, as they would be the sole judges of the good or evil, it would be
also a power to do whatever evil they please... Certainly no such universal power was
meant to be given them. It was intended to lace them up straitly within the enumerated
powers and those without which, as means, these powers could not be carried into
effect." --Thomas Jefferson: Opinion on National Bank, 1791. ME 3:148
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"It is an established rule
of construction where a phrase will bear either of two meanings, to give it that which
will allow some meaning to the other parts of the instrument, and not that which would
render all the others useless." --Thomas Jefferson: Opinion on National Bank, 1791.
ME 3:148
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"The general rule, in the
construction of instruments, [is] to leave no words merely useless, for which any rational
meaning can be found." --Thomas Jefferson: Opinion on the Tonnage Payable, 1791. ME
3:290
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"For authority to apply the
surplus [of taxes] to objects of improvement, an amendment of the Constitution would have
been necessary." --Thomas Jefferson to John W. Eppes, 1813. ME 13:354
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"[If] it [were] assumed that
the general government has a right to exercise all powers which may be for the 'general
welfare,' that [would include] all the legitimate powers of government, since no
government has a legitimate right to do what is not for the welfare of the governed."
--Thomas Jefferson to George Washington, 1792. ME 8:397
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"Our tenet ever was... that
Congress had not unlimited powers to provide for the general welfare, but were restrained
to those specifically enumerated, and that, as it was never meant that they should provide
for that welfare but by the exercise of the enumerated powers, so it could not have been
meant they should raise money for purposes which the enumeration did not place under their
action; consequently, that the specification of powers is a limitation of the purposes for
which they may raise money." --Thomas Jefferson to Albert Gallatin, 1817. ME 15:133
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"Congress are authorized to
defend the nation. Ships are necessary for defence; copper is necessary for ships; mines
necessary for copper; a company necessary to work mines; and who can doubt this reasoning
who has ever played at 'This is the House that Jack built?' Under such a process of
filiation of necessities the sweeping clause makes clean work." --Thomas Jefferson to
Edward Livingston, 1800. ME 10:165
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"If, wherever the
Constitution assumes a single power out of many which belong to the same subject, we
should consider it as assuming the whole, it would vest the General Government with a mass
of powers never contemplated. On the contrary, the assumption of particular powers seems
an exclusion of all not assumed." --Thomas Jefferson to Joseph C. Cabell, 1814. ME
14:83
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"I hope our courts will
never countenance the sweeping pretensions which have been set up under the words 'general
defence and public welfare.' These words only express the motives which induced the
Convention to give to the ordinary legislature certain specified powers which they
enumerate, and which they thought might be trusted to the ordinary legislature, and not to
give them the unspecified also; or why any specification? They could not be so awkward in
language as to mean, as we say, 'all and some.' And should this construction prevail, all
limits to the federal government are done away." --Thomas Jefferson to Spencer Roane,
1815. ME 14:350
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"This phrase,... by a mere
grammatical quibble, has countenanced the General Government in a claim of universal
power. For in the phrase, 'to lay taxes, to pay the debts and provide for the general
welfare,' it is a mere question of syntax, whether the two last infinitives are governed
by the first or are distinct and coordinate powers; a question unequivocally decided by
the exact definition of powers immediately following." --Thomas Jefferson to Albert
Gallatin, 1817. ME 15:133
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"Although the power to
regulate commerce does not give a power to build piers, wharves, open ports, clear the
beds of rivers, dig canals, build warehouses, build manufacturing machines, set up
manufactories, cultivate the earth, to all of which the power would go if it went to the
first, yet a power to provide and maintain a navy is a power to provide receptacles for
it, and places to cover and preserve it." --Thomas Jefferson to Albert Gallatin,
1802. ME 10:337
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"While we pursue, then, the
construction of the Legislature, that the repairing and erecting lighthouses, beacons,
buoys, and piers, is authorized as belonging to the regulation of commerce, we must take
care not to go ahead of them and strain the meaning of the terms still further to the
clearing out the channels of all the rivers, etc., of the United States. The removing a
sunken vessel is not the repairing of a pier." --Thomas Jefferson to Albert Gallatin,
1803. ME 10:379
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"I suppose an amendment to
the Constitution, by consent of the States, necessary [for certain objects of public
improvement], because the objects now recommended are not among those enumerated in the
Constitution, and to which it permits the public moneys to be applied." --Thomas
Jefferson: 6th Annual Message, 1806. ME 3:424
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"The interests of commerce
place the principal object [i.e., a western exploring expedition] within the
constitutional powers and care of Congress, and that it should incidentally advance the
geographical knowledge of our own continent, can not but be an additional
gratification." --Thomas Jefferson: Confidential Message on Western Exploration,
1803. ME 3:493
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Unauthorized Assumptions of Power
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"Where powers are assumed
which have not been delegated, a nullification of the act is the rightful remedy."
--Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:386
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"[The States] alone being
parties to the [Federal] compact... [are] solely authorized to judge in the last resort of
the powers exercised under it, Congress being not a party but merely the creation of the
compact and subject as to its assumptions of power to the final judgment of those by whom
and for whose use itself and its powers were all created and modified." --Thomas
Jefferson: Draft Kentucky Resolutions, 1798. ME 17:387
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"The government created by
this compact was not made the exclusive or final judge of the extent of the powers
delegated to itself, since that would have made its discretion and not the Constitution
the measure of its powers; but... as in all other cases of compact among powers having no
common judge, each party has an equal right to judge for itself, as well of infractions as
of the mode and measure of redress." --Thomas Jefferson: Draft Kentucky Resolutions,
1798. ME 17:380
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"I think it important... to
set an example against broad construction by appealing for new power to the people. If,
however, our friends shall think differently, certainly I shall acquiesce with
satisfaction, [confident] that the good sense of our country will correct the evil of
construction whenever it shall produce ill effects." --Thomas Jefferson to Wilson
Nicholas, 1803. ME 10:420
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"It is a happy circumstance
in human affairs that evils which are not cured in one way will cure themselves in some
other." --Thomas Jefferson to John Sinclair, 1791. ME 8:231
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"As to [the giving to
Congress the power of internal improvement on condition that each State's federal
proportion of the moneys so expended shall be employed within the State], there is
probably not a State in the Union which would not grant the power on the condition
proposed, or which would grant it without that." --Thomas Jefferson to Robert J.
Garnett, 1824. ME 16:15
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"An express grant of the
power [for internal improvements]... would render its exercise smooth and acceptable to
all and insure to it all the facilities which the States could contribute to prevent that
kind of abuse which all will fear, because all know it is so much practiced in public
bodies: I mean the bartering of votes. It would reconcile everyone, if limited by the
proviso that the federal proportion of each State should be expended within the State.
With this single security against partiality and corrupt bargaining, I suppose there is
not a State, perhaps not a man in the Union, who would not consent to add this to the
powers of the General Government." --Thomas Jefferson to Edward Livingston, 1824. ME
16:25
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"One precedent in favor of
power is stronger than an hundred against it." --Thomas Jefferson: Notes on Virginia
Q.XIII, 1782. ME 2:172
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"The utility of the thing
[shall sanction] the infraction [of the Constitution]. But if on that infraction we build
a second, and on that second a third, etc., any one of the powers in the Constitution may
be made to comprehend every power of government." --Thomas Jefferson to Albert
Gallatin, 1802. ME 10:338
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"On every unauthoritative
exercise of power by the legislature must the people rise in rebellion or their silence be
construed into a surrender of that power to them? If so, how many rebellions should we
have had already?" --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:171
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"The Constitution of the
United States is a compact of independent nations subject to the rules acknowledged in
similar cases, as well that of amendment provided within itself, as, in case of abuse, the
justly dreaded but unavoidable ultimo ratio gentium [the final argument of nations,
i.e., war]." --Thomas Jefferson to Edward Everett, 1826. ME 16:163
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"[The Louisiana Purchase
was] laid before both Houses [of Congress], because both [had] important functions to
exercise respecting it. They... [saw] their duty to their country in ratifying and paying
for it so as to secure a good which would otherwise probably be never again in their
power. The Constitution has made no provision for our holding foreign territory, still
less for incorporating foreign nations into our Union. The Executive, in seizing the
fugitive occurrence which so much advances the good of their country, have done an act
beyond the Constitution. The Legislature in casting behind them metaphysical subtleties
and risking themselves like faithful servants, must ratify and pay for it and throw
themselves on their country for doing for them unauthorized what we know they would have
done for themselves had they been in a situation to do it. It is the case of a guardian
investing the money of his ward in purchasing an important adjacent territory and saying
to him when of age, I did this for your good; I pretend to no right to bind you. You may
disavow me, and I must get out of the scrape as I can. I thought it my duty to risk myself
for you. But we [were] not disavowed by the nation, and their act of indemnity [confirmed]
and [did] not weaken the Constitution by more strongly marking out its lines."
--Thomas Jefferson to John Breckenridge, 1803. (*) ME 10:410
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ME, FE = Memorial Edition, Ford Edition.
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