, March 17, 2013
(view all comments by cmottwoolley)
Reading Jon Meacham's biography of Thomas Jefferson reminded me of the journalist who asked J. P. Morgan about the cost of a yacht: “if you have to ask, you cannot afford it.” The way Morgan thought of yachts, Meacham seems to think of Jefferson. Henry Wienek's review of the book gets to this point: "Meacham has chosen storytelling over analysis, offering up a genial but meandering narrative. There is some meat in the book, but finding it requires dexterity and doggedness��"checking the endnotes after every ten pages or so to see what is missing from the passing panorama. Meacham has read the scholarly literature on Jefferson��"some of it critical��"but doesn’t let enough of this debate intrude on the storytelling, which nearly always puts Jefferson in the best possible light." See, Henry Wiencek Reviews Jon Meacham's "Thomas Jefferson: The Art of Power" | New Republic
I agree with Wienek. The bitter feud between Washington and Jefferson while noted by Meacham is not analyzed; he describes it with a nonchalance that is aggravating. On the Mt. Vernon website Mary Stockwell, Ph.D. writes: “Martha Washington often recalled the two saddest days of her life. The first was December 14, 1799 when her husband died. The second was in January 1801 when Thomas Jefferson visited Mount Vernon. As a close friend explained, ‘She assured a party of gentlemen, of which I was one, that next to the loss of her husband’ Jefferson's visit was the ‘most painful occurrence of her life.’ She had come to dislike Jefferson for his frequent attacks on President Washington as a monarchist bent on destroying the rule of the people and a senile follower of the policies of Alexander Hamilton. Jefferson even refused to attend memorial services for the President, saying in private that the ‘republican spirit’ in the nation might revive now that Washington was dead and the Federalists could no longer hide behind his heroic image.’”
Similarly, when Jefferson as President (i) issued pardons to persons still serving sentences under the Sedition Act, (ii) engineered repeal of the law by which his predecessor had appointed new judges, and (iii) engineered as well impeachment proceedings to oust federal judges at odds with his views, Abigail Adams wrote to him July 1, 1804 saying: “I have never felt any enmity towards you, Sir, for being elected President of the United States. But the instruments made use of and the means which were practiced to effect a change have my utter abhorrence and detestation, for they were the blackest calumny and the foulest falsehoods." So much for the "art of power" - Meachum subtitle to the Jefferson biography.
But let dear Abigail continue: "One of the first acts of your administration was to liberate a wretch, who was suffering the just punishment of his crimes for publishing the basest libel, the lowest and vilest slander which malice could invent or calumny exhibit, against the character and reputation of your predecessor; of him, for whom you professed a friendship and esteem, and whom you certainly knew incapable of such complicated baseness . . . . Until I read Callender's seventh letter containing your compliment to him as a writer and your reward of fifty dollars, I could not be made to believe that such measures could have been resorted to, to stab the fair fame and upright intentions of one who, to use your own language, ‘was acting from an honest conviction in his own mind that he was right.’ This Sir, I considered as a personal injury; this was the sword that cut asunder the Gordian knot, which could not be untied by all the efforts of party spirit, by rivalry, by jealousy, or any other malignant fiend.”
These two ladies ��" Martha and Abigail, there at the time - saw in Jefferson, not “the art of power” but unadorned guile, if not avarice. I side with the ladies. While serving as Vice President, Jefferson secretly articulated a doctrine in the Kentucky Resolution empowering a State to declare null and void a federal law knowing full well the Supremacy Clause in the Constitution forbids such a thing. That Jefferson had advanced this doctrine remained unknown during his lifetime ��" at his insistence. Call this art if you like but stealth is stealth. While serving as President, with equal verve, he articulated and followed a doctrine empowering himself as President to disregard and not enforce a federal law despite judicial decisions upholding the law’s constitutionality; before expiration of the Sedition Act, he simply refused to enforce it even though federal courts had repeatedly upheld its constitutionality. As to this shy side of Jefferson Abigail wrote to him on August 18, 1804, saying: “Your statement respecting Callender [jailed under the Sedition Act], and your motives for liberating him wear a different aspect as explained by you, from the impression which the act had made, not only upon my mind, but upon the minds of all those whom I have ever heard speak upon the subject. With regard to the law under which he was punished, different persons entertain different opinions respecting it. It lies not with me to determine its validity or constitutionality. That devolved upon the Supreme Judges of the nation. I have ever understood that the power which makes a law is only competent to the repeal of it. If a Chief Magistrate can by his will annul it, where is the difference between a republican and a despotic government?”
Abigail knew full well the art of power and she saw in Jefferson a dangerous man. The point is this: as to “the art of power” under our Constitution, Thomas Jefferson gave voice to and endorsed ideas terribly dangerous: he sought to legitimize secession and extra-legal acts by a President.
First, under Jefferson’s "art" of power, a State is not subject to the Supremacy Clause of the Constitution, and, because the United States of America is a mere compact to which the States but not the federal government are parties, terminable at will, Americans do not live in a perpetual Union; any State at any time may secede if its view of the Constitution the federal government has exceeded its power. In Jefferson’s words: “every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits [the federal government]: . . . they [States] alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it [the Constitution], Congress being not a party, but merely the creature of the compact . . . .”
Second, under Jefferson’s "art" of power, a President shall determine for himself whether an act of Congress is constitutional and the President may refuse to enforce any act even if the judiciary has held the law to be constitutional. In Jefferson’s words, responding to Abigail in July 1804: “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image.”
Modern day Neocons ��" David Addington comes to mind ��" very much like this ‘art of power’. Writing in the Boston University Law Review, Vol. 88, No. 2, 2008, John Yoo explains why (citations omitted):
“Jefferson was unmoved by the fact that the courts had upheld the constitutionality of the Acts [Alien and Sedition Acts]. In a letter to Abigail Adams explaining his actions, Jefferson asserted that the executive and judiciary are ‘equally independent’ in reviewing the constitutionality of the laws. ‘You seem to think it devolved on the judges to decide on the validity of the sedition law,’ he wrote. ‘But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.’ Jefferson believed that each branch had the right to interpret the Constitution and to fulfill its unique duties accordingly. The courts can view a law as constitutional and allow cases under it to go forward, but the President can hold a different view from the courts, and refuse to bring prosecutions against those who violate the law and pardon those already convicted. According to Jefferson, ‘the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution.’ Allowing the courts to interpret the Constitution to bind the other branches, Jefferson wrote Abigail Adams, ‘would make the judiciary a despotic branch.’ While Jefferson did not challenge the courts’ right to interpret the Constitution or review the constitutionality of statutes, he denied that the judiciary’s thinking bound the President in the exercise of his own responsibilities.”
Remarkably, John Yoo omits in his discussion the countervailing arguments of Abigail Adams’ quoted above. Like Jefferson, Yoo knows the "art of power". To repeat what dear Abigail said: “If a Chief Magistrate can by his will annul it, where is the difference between a republican and a despotic government?” Neal Devins and Saikrishna Prakash, in a recent Columbia Law Journal article (Columbia Law Review, Vol. 112, April 2012) make a similar point about later men exercising Jefferson's 'art of power': “In 1868, President Andrew Johnson followed the Jeffersonian rule of ignoring a law he believed was unconstitutional. For his violation of the 1867 Tenure in Office Act, Johnson was impeached and almost convicted. As Johnson’s counsel and former Supreme Court Justice Benjamin Curtis put it, when ‘a question arises whether a particular law has cut off a power confided to [the President] . . . and he alone can say which of them is right . . . the President can ignore the law . . . .”
I mention these examples of Jefferson’s ‘art of power’ because Meacham, oddly, fails to note them, other than in passing. Leonard W. Levy’s study, Jefferson and Civil Liberties: The Darker Side is plainly set out by Meacham in his bibliography. Why not add dimension to Jefferson's story by setting forth his repeated violations of the Constitution?
More surprising to me is that Meacham fails to share with readers the words of the one man who it can safely be said spent more hours than any man alive thinking about Jefferson - Lincoln. As to slavery and Jefferson, Meacham suggests we must bear in mind Jefferson was a product of his time and life is complicated. In this patronizing way, Meacham would have us think that Jefferson was a wholly modern man born in the wrong century. This diminishes the greatness of Jefferson.
In an interview, George Will explains why:
Q: Do you think that there is an American fault line along which this question of race lies and that Jefferson himself embodies that tension?
A: I think Jefferson was torn and the nation has been torn and for the foreseeable future will be torn by this legacy. But what, to me, is more remarkable than the fact that Jefferson kept his slaves, is the fact that he was putting down political markers expressing commitments, affirming values, rooting the nation in commitments that were bound to be resolved one day. He didn't know they'd be resolved in four years of fire and bloodshed. But he knew, it seems to me, he had to know that ideas have consequences, and the consequences of Jefferson's ideas had to be the end of slavery.
Douglas L. Wilson in The Atlantic Monthly, November, 1992 Thomas Jefferson and the Character Issue puts it this way: “Writing from retirement at the age of seventy-three, he [Jefferson] told a correspondent that ‘laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.’”
But Lincoln (as usual) said it best. The Declaration established a “standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”
In the fifth Debate with Stephen Douglas in 1858, Lincoln said “I believe the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the Negro was not included in the Declaration of Independence. I think I may defy Judge Douglas to show that he ever said so, that Washington ever said so, that any President ever said so, that any member of Congress ever said so, or that any living man upon the whole earth ever said so, until the necessities of the present policy of the Democratic party, in regard to slavery, had to invent that affirmation. And I will remind Judge Douglas and this audience, that while Mr. Jefferson was the owner of slaves, as undoubtedly he was, in speaking upon this very subject, he used the strong language that ``he trembled for his country when he remembered that God was just;'' and I will offer the highest premium in my power to Judge Douglas if he will show that he, in all his life, ever uttered a sentiment at all akin to that of Jefferson.”
Writing in 1859, Lincoln said Jefferson's Declaration gave “liberty, not alone to the people of this country, but hope to the world for all future time, . . . a promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance.” As Lincoln explained at Gettysburg, American progress and greatness lies not in the Constitution or even the Union, but in “something back of these, something entwining itself more closely about the human heart: the principle of ‘Liberty to All.’”
I recognize the Jefferson explained by Lincoln, Abigail Adams and Martha Washington, not the Jefferson explained Meacham. Lincoln did not, as Meacham does, explain away Jefferson’s ownership of slaves by dint of the fact Jefferson lived in olden times. The key to understanding Jefferson on the vital issue of slavery (over which hundreds of thousands of Americans slaughtered one another), in what Lincoln said in Peoria on October 16, 1854: “Before proceeding, let me say I think I have no prejudice against the Southern people. They are just what we would be in their situation. If slavery did not now exist amongst them, they would not introduce it.” Did not Jefferson say the same thing in his draft of the Declaration of Independence? Before Congressional editing, Jefferson's draft included this paragraph: “he [the king of Britain] has waged cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.”
That deleted passage was well known to Lincoln. For this reason, in Peoria, he went on to say:
“If it [slavery] did now exist amongst us [in the North], we should not instantly give it up. This I believe of the masses north and south. Doubtless there are individuals, on both sides, who would not hold slaves under any circumstances; and others who would gladly introduce slavery anew, if it were out of existence. We know that some southern men do free their slaves, go north, and become tip-top abolitionists; while some northern ones go south, and become most cruel slave-masters. When southern people tell us they are no more responsible for the origin of slavery, than we; I acknowledge the fact. When it is said that the institution exists; and that it is very difficult to get rid of it, in any satisfactory way, I can understand and appreciate the saying. I surely will not blame them for not doing what I should not know how to do myself. If all earthly power were given me, I should not know what to do, as to the existing institution. My first impulse would be to free all the slaves, and send them to Liberia,---to their own native land. But a moment's reflection would convince me, that whatever of high hope, (as I think there is) there may be in this, in the long run, its sudden execution is impossible. If they were all landed there in a day, they would all perish in the next ten days; and there are not surplus shipping and surplus money enough in the world to carry them there in many times ten days. What then? Free them all, and keep them among us as underlings? Is it quite certain that this betters their condition? I think I would not hold one in slavery, at any rate; yet the point is not clear enough for me to denounce people upon. What next? Free them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not. Whether this feeling accords with justice and sound judgment, is not the sole question, if indeed, it is any part of it. A universal feeling, whether well or ill-founded, cannot be safely disregarded. We cannot, then, make them equals. It does seem to me that systems of gradual emancipation might be adopted; but for their tardiness in this, I will not undertake to judge our brethren of the south.”
Meacham’s biography does a disservice to not only Jefferson but Lincoln's understanding of Jefferson. That is what irks me. Whereas Meacham condemns Jefferson’s slave ownership, Lincoln did not. Lincoln understood it was a natural thing to want to own a slave and said so. So did Jefferson for that matter. Things went awry in America when men started to say that Jefferson was just kidding when he said in the Declaration all men were created equal. This was the changed circumstance to which Lincoln spoke - men in open discourse began to reject the standard set by Jefferson. Unlike the Constitution, Lincoln refused to permit an amendment to the Declaration. It is perpetual, even if the provisions of the Constitution are not. As one historian has noted, “Thanks in large part to Lincoln, Americans no longer understand the Declaration as a philosophical expression of natural rights, but rather take it to be a statement about the social and political conditions that ought to prevail. Jefferson's Declaration is thus remarkable not only for its durability -- its ability to remain meaningful and relevant -- but also for its adaptability to changing conditions. At a time when natural rights are widely proclaimed a nullity, the language of the Declaration is universally understood as affirming human rights, and is resorted to even by those who do not consciously associate their ideas or aspirations with Jefferson. Simply to name the most basic American ideals is to invoke the words of Jefferson.” Reading Meacham's biography you might forget this.