Thomas Jefferson, the Apostle of Americanism

by Gilbert Chinard

Of the first kind are the rights of thinking, speaking, forming and giving opinions, and perhaps all those which can be fully exercised by the individual without the aid of exterior assistance—or in other words, rights of personal competency—Of the second kind are those of personal protection of acquiring and possessing property, in the exercise of which the individual natural power is less than the natural right.

Having drawn this line they agree to retain individually the first Class of Rights or those of personal Competency; and to detach from their personal possession the second Class, or those of defective power and to accept in lieu thereof a right to the whole power produced by a condensation of all the parts. These I conceive to be civil rights or rights of Compact, and are distinguishable from Natural rights, because in the one we act wholly in our own person, in the other we agree not to do so, but act under the guarantee of society.

It therefore follows that the more of those imperfect natural rights, or rights of imperfect power we give up and thus exchange the more securely we possess, and as the word liberty is often mistakenly put for security M^r Wilson has confused his Argument by confounding the terms.

But it does not follow that the more natural rights of every kind we resign the more securely we possess,—because if we resign those of the first class we may suffer much by the exchange, for where the right and the power are equal with each other in the individual naturally they ought to rest there.

M^r Wilson must have some allusion to this distinction or his position would be subject to the inference you draw from it.

I consider the individual sovereignty of the States retained under the Act of Confederation to be of the second Class of rights. It becomes dangerous because it is defective in the power necessary to support it. It answers the pride and purpose of a few men in each state—but the State collectively is injured by it.

Unless I am much mistaken we have here the key to the whole democratic system of government evolved by Jefferson and the solution of the apparent contradictions often pointed out in his system. Starting from the hypothesis of Hobbes that in a state of nature men are free agents and have no other law but their own will, Jefferson attributes to the surrounding dangers the urge to form some sort of a society, a theory also found in Locke. But what follows is more original: in forming a social compact, men do not abdicate all their sovereignty as in the hypothesis of Rousseau; they do not even abdicate a certain portion of all their rights. On the contrary, they reserve entire a certain class of rights, all those they can exercise fully without the aid of exterior assistance, and they exchange for more security those they cannot exercise themselves. Thus the social compact is no longer a pactum subjectionis. It is no longer a question of deciding whether in a society the individual or the society are sovereign, since both are sovereign in their respective domains. How far Jefferson was from being a demagogue is clearly indicated by the sentence in which he refers to James Wilson. Liberty, except liberty of speech and thought, cannot be unlimited and unrestricted in any society; it is a matter of bargain and exchange. Thus Jefferson proposed a definition of liberty entirely different from the French conception as found in Rousseau and reproduced in the "Déclaration des droits de l'homme" of May 29, 1793: "La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui." With him, on the contrary, liberty consists in the free enjoyment of our will except in certain specific cases, to be enumerated at the time we form a social compact. Hence the necessity of a Bill of Rights, in which the individual accepts certain limitations in order to obtain a corresponding amount of security, and specifically denominates those of his natural rights he means to keep integrally and wholly.

This explains clearly why Jefferson, who is represented as the champion of State rights, not only accepted the abridgment of State sovereignty but declared that the retention by the States of certain rights was dangerous and illogical. One of the first cases arises when dealing with foreign nations. Here the individual State is clearly unable to protect itself against foreign aggressions and foreign encroachments, and foreign policies must properly be placed in the hands of the Federal Government. This applies not only to questions of protection, but to questions of commerce, and for two reasons, both of them practical and not theoretical. Commerce is one of the great causes of war. In order to protect the confederation the government has the right to levy taxes, and the most convenient form is that of imposts or taxes on importations. Secondly, the Federal Government is evidently in a better situation than the individual States for obtaining favorable treatment of their commerce by foreign nations. Hence the insistence of Jefferson throughout his life on the prerogatives of the Federal Government in all matters referring to foreign policies, and his reiterated declarations in favor of State rights.

Incidentally, this document explains two otherwise unexplainable incidents in Jefferson's career.