It will be said that this court may encroach over the jurisdiction of the State courts. It may. But there will be a power, to wit, Congress, to watch and restrain them. But place the same authority in Congress itself, and there will be no power above them, to perform the same office. They will restrain within due bounds a jurisdiction exercised by others, much more rigourously than if exercised by themselves.[156]
In a letter to Edward Carrington he summed up his views even more clearly. Reforms are necessary, although with all its defects the present government of the United States is so far superior to any monarchy that its defects must be viewed with indulgence. If any change is to be made, the general principle ought to be
to make the States one as to everything connected with foreign nations, and several as to everything purely domestic. Then to separate the executive from the legislative in order to avoid the terrible delays which are bound to happen with a large assembly and to have the most important propositions hanging over, from week to week and month to month, till the occasions have passed them, and the things never done.[157]
Even if originally Jefferson had been of another opinion, the situation in Europe would have rapidly brought him to the same conclusion. For the credit of the United States could only be maintained on the condition that the newly formed confederation gave guarantees of permanency and stability. In his letters to foreign correspondents, such as Dumas, financial agent of the United States in Holland, he consequently affected more confidence in the wisdom of the convention than he perhaps felt at heart:
No trouble of any sort is to be anticipated. Happily for us that when we find our constitutions defective and insufficient, to secure the happiness of our people, we can assemble with all the coolness of philosophers, and set it to rights, while every other nation on earth must have recourse to arms to amend or restore their constitutions.[158]
The main principle to observe is a separation of powers into "legislative, executive and judiciary" as complete as possible, and the rest will follow of itself.
Yet as the convention approached, he favored less than ever the possibility of trusting any individual with the executive power for an indefinite length of time. "There are things in it which stagger all my dispositions to subscribe to what such an Assembly has proposed," he wrote to Adams. His chief objection to the Constitution was the appointment of a President who would be a sort of Polish king. If they wanted a President they could have it, provided they should make him ineligible at the end of four years. He even came to wonder whether too much ado was not made by the convention, for all the good that was in the new Constitution "could have been couched in three or four new articles added to the old articles of confederation." Far from being a radical and one of these reformers who first think of destroying the old order of things in order to build anew, Jefferson proposed to keep as much as possible "the good old and venerable fabric which should have been preserved, even as a religious relic."[159]
At that time Jefferson had not yet received the text of the Constitution and had only vaguely heard of the discussion in the convention. When the newspapers brought him more details, he acquainted Carmichael with his views on the situation. This time his objection to the proposed scheme was more specific. It bore not only on the presidency but on the absence of a Bill of Rights; the thirteen States could not be melted into one government without guarantees to the people, and particularly without the recognition of the freedom of the press. The subordination of the laws of the States to Federal legislation was equally objectionable and he predicted that many States, among them Virginia, would reject several articles, making it necessary to assemble another convention to reach a better agreement.[160]
But it was reserved for Madison finally to become his confident on this question, and Jefferson's letter to him is both a capital document for the history of Jeffersonian democracy and a discussion of the first rank on the science of government. The good things Jefferson saw in the Constitution were many: the division of powers; the election of a greater House by the people directly; the negative given to the executive by a third of either Houses, and many others of less moment. But the absence of a Bill of Rights could not be condoned, for it was a sacred palladium of liberty, nor the abandonment of rotation in office, particularly in the case of the President. He did not despair of the Commonwealth, but he foresaw the necessity of calling another convention to agree on an explicit Bill of Rights and to change the objectionable features of the convention. In a postscript, he made one of those curious proposals which would be disconcerting if it were not remembered that his faith in democracy and representative government was tempered with a great deal of common sense. The people are right most of the time, the people are right in most cases, but the people are not right in all cases: they are apt to be swayed by temporary interests and considerations and they are apt also to pass contradictory laws from day to day. In order to remedy this instability of legislation, Jefferson did not hesitate to recommend that there should always be "a twelvemonth between the engrossing a bill and passing it", adding that if circumstances required a speedier passage, it should take "two thirds of both Houses instead of a bare majority."[161]
Having thus defined his position with regard to the Constitution, he thought it necessary to qualify it. Despite its imperfections, it contained many excellent points; and if it were felt that insistence on a Bill of Rights, or on the principle of rotation for the presidency should cause dissensions between the States, Jefferson declared himself ready "to swallow the two bitter pills" in order to avoid a schism in the Union. For that would be "the incurable evil" because near friends, falling out, never re-united cordially; "whereas, all of us going together, we shall be sure to cure the evils of our new Constitution before they do great harm."[162]