Notes on the State of Virginia Query XIII: Constitution by Thomas Jefferson

Thomas Jefferson’s Notes on the State of Virginia provides an examination of the difficulties the State of Virginia faced in governing itself over the course of the Revolutionary period.  Self-government, as the United States has learned over the last two centuries, is no mean feat.  It was made all the more difficult as there were no enduring examples to look to for guidance, and one of the greatest militaries the world had known had waged a war across the Thirteen Colonies.  Query XIII: Constitution addresses a wide range of issues, from justice in representation, the separation of powers, to a warning against expediency in deviating from the rule of law.

If this reads like a list of issues tackled at the 1787 Constitutional Convention in Philadelphia, it should; James Madison and George Mason had a hand in drafting the Virginia Constitution in 1776, and Madison’s Virginia plan was of course the foundation for our Constitution.  Mason was a leading exponent of a Bill of Rights.  Notably, Thomas Jefferson was at the meeting of the Continental Congress in 1776 and in France for the Constitutional Convention in 1787, meaning he served in the creation of neither the Virginia’s nor the United States’ constitution.  Undoubtedly, his close friendship with James Madison influenced his writing of Notes on the State of Virginia, just as he influenced Madison.  Regardless, Jefferson’s observations illustrate an acute awareness and concern for self-government, of which justice is one of the greatest and most difficult pursuits.

Jefferson began Query XIII with an examination of the representation that constituted Virginia’s Senate and House of Delegates.  He immediately pointed out in Section One that “The majority of the men in the state who pay and fight for its support are underrepresented in the legislature…”  He goes on in Section Two to point out the inequity in representation between counties where more men paid taxes and fought for Virginia, but had equal representation to counties with far fewer taxpayers or members of the militia.  He points out how close one region of Virginia, with 19,000 fighting men, came to dominate the rest of the state through a near majority in both houses.  He wrote, “These nineteen thousand, therefore, living in one part of the country, give law to upwards of thirty thousand living in another…” Jefferson saw injustice as a result of how representation was allotted.  Should then, voice in government be dependent upon contribution to it- that is taxes or military service?  Perhaps more pointedly we can ask whether representation should be based upon the size of your population — so as to adequately reflect the will of the people– or should it be evenly distributed between counties to prevent a heavily populated area from trampling the rights and will of a rural region?  Ideally, the point of a bicameral legislature is to introduce an element of both of these into a government, but Jefferson realized their plan for representation was flawed in execution: “We do not, therefore, derive from the separation of our legislature into two houses, those benefits which a proper complication of principles are capable of producing…”

The next major topic of discourse is the failure to properly separate and divide the powers of the Virginia government.  Jefferson finds that too much power is put in the hands of the legislature; he notes “One hundred seventy-three despots would surely be as oppressive as one…an elective despotism was not the government we fought for…” The branches of government must restrain one another from exceeding their authority; for this to be possible, one branch must not depend on another for power.  The problem with the Virginia Constitution was that the “judiciary and executive members were left dependent on the legislature, for their subsistence in office, and some of them for their continuance in it.” Jefferson notes that the concentration of power in so few hands lends itself to the abuse of “public money and public liberty.”  While those in power at the time were good men, they should not “be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them.”  The nobility and honesty of those in power is not guaranteed from election to election.  Thus, it is necessary to set the branches of government in opposition to check their power and ensure the liberty of the people.  Remedying this quandary and setting the branches in opposition is the brilliance of the United States Constitution.

Section Six of Query XIII is a harsh criticism of the Virginia House of Delegates who had set their own quorum at forty.  This was an expedient measure taken to do business while the war raged.  Jefferson viewed this as a dangerous precedent, detrimental to the character of a deliberative body: “if they may fix it at one number, they may at another, till it loses its fundamental character of being a representative body.”  When only forty members meet to conduct business, it is not a full expression of the will of the people, and thus not truly representative body.  The legislature derives its just authority to govern not from special status or a claim of God’s favor, but from the consent of the governed.  Did these representatives, who have had their authority delegated to them by the people, have the authority to further delegate that authority into fewer hands?  Jefferson’s answer was no.

Jefferson is concerned that a dangerous precedent for concentrating power has been set, and “one precedent in favor of power is stronger than an hundred against it.”  Expediency and crisis, in this instance combined with the war, lent an opportunity to dictators to arise and usurp the sovereignty of the people.  This temporary concentration of power into the hands of the few lends itself to a permanent restriction of rights.  The example Jefferson immediately turns to is that of Rome, when the Senate placed all the power in the hands of one man, Caesar, which marked the death of the republic.  There is a great lesson here for us to learn today; no matter how troubled circumstances appear, the rights of the people should not be surrendered, and our republican form of government must be maintained so as to protect liberty and ensure just representation of the citizenry.

Read  Thomas Jefferson’s Notes on the State of Virginia Query XIII: Constitution Below:   https://constitutingamerica.org/?p=3891

James Legee recently completed his Master of Arts in Political Science at Villanova University, where he was a Graduate Fellow at the Matthew J. Ryan Center for the study of Free Institutions and the Public Good. You can find him on twitter @JamesLegee.”

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