200 years ago, Jefferson looked to Article V to save America from monarchy

Thomas Jefferson and James Madison were two of early America’s closest colleagues, collaborators, and friends. The two brilliant minds engaged in a decades-long dynamic exchange of ideas regarding religious freedom, political philosophy, oeconomy, meteorology, zoology, botany, architecture, and literature. “The right Kidney in the weasel was advanced a little only before the left,” Madison wrote Jefferson in a meticulously detailed 1,300-word account of a recent weasel dissection. His thorough notes covered everything from the “length of the [weasel’s] ear perpendicularly” to the “length of [the] nails of [the] forefoot.” On another occasion, Jefferson penned a letter from Paris requesting that his old friend send him cranberries and opossums. Madison was unable to fulfill the request.

No topic was off the table. (Jefferson even served as Madison’s matchmaker!) However, that does not imply that the two men always agreed.

Madison harbored a deep skepticism of the masses, fearing that without a robust federal government to temper the potentially unchecked passions of the majority, the rights of minorities might be trampled. In contrast, Jefferson maintained a more optimistic perspective. His primary concern was not the potential for the majority to oppress the minority but rather the possibility of the federal government becoming too powerful and overstepping its bounds.

To accent this difference, Madison argued for a “federal negative,” a congressional veto over “problematic” state laws. Needless to say, Jefferson opposed the idea. “Primâ facie I do not like it,” he told Madison. “Not more than 1. out of 100. state-acts concern the confederacy. This proposition then, in order to give them 1. degree of power which they ought to have, gives them 99. more which they ought not to have, upon a presumption that they will not exercise the 99.”

However, Jefferson was not without his own occasionally eccentric and misguided ideas. The same man who famously declared, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” once informed his colleague that he believed the Constitution should expire every 19 years (according to Jefferson, a generation lasted about 19 years), permitting each new generation the opportunity to write its own governing charter.

“[It] may be proved,” he argued, “that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation…. Every constitution then, [and] every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, [and] not of right.”

One can imagine that Madison, ever wary of populist excesses, must have been horrified. This time, it was his turn to talk his friend back from a dangerous ledge. He suggested that Jefferson’s preoccupation with “the voice of the majority” did not stem “from the law of nature, but from… conveniency.” Moreover, his proposal, “not in all respects compatible with the course of human affairs,” could not reasonably be implemented “without subverting the foundation of civil Society.”

In Madison’s national veto and Jefferson’s “contract with the living” — both of which were fortunately discarded — we have prime examples of each man’s characteristic fears: Madison of an emasculated federal government and Jefferson of an underrepresented citizenry.

However, by 1823, under James Monroe’s presidency, Jefferson began to fear that the Federalists had tipped the scale in favor of the former. Nay, it was worse than that. In a highly partisan letter to Founding Father William Johnson, Jefferson wrote that the “vanity” of the Federalists laid bare “the genuine monarchism of their principles.”

The author of the Declaration of Independence, who did not attend the Constitutional Convention but nevertheless appears to have influenced the proceedings through his correspondence with Madison, praised the “steady equilibrium [balance] which the majority of the Convention had deemed salutary [beneficial] for both branches [—] general and local.” He cautioned that the Federalists threatened to erode that balance.

“I have stated,” he recorded, “that the original objects of the Federalists were 1. to warp our government more to the form and principles of monarchy, [and] 2. to weaken the barriers of the state governments as co-ordinate powers.”

“I answer,” he continued, “by asking if a single state of the Union would have agreed to the constitution had it given all powers to the General government? if the whole opposition to it did not proceed from the jealousy and fear of every state of being subjected to the other states in matters merely it’s [sic] own? and if there is any reason to believe the states more disposed, now than then, to acquiesce in this general surrender of all their rights and powers to a Consolidated government, one and undivided?”

Jefferson summarized that the states were persuaded to ratify the Constitution with promises that their sovereignty would largely be preserved. Consequently, the federal government had a responsibility to avoid overstepping into their jurisdictional domain. Besides, ever a man of the people, Jefferson trusted the states more than he trusted Washington and preferred that they handle as many of their own affairs as possible.

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 US. those which respected citizens of foreign or other states,” he reminded Johnson. “I wish therefore to see maintained that wholesome distribution of powers established by the constitution for the limitation of both: [and] never to see all offices transferred to Washington, where further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market” [emphasis added].

But how were the states to recapture that equilibrium now that, in Jefferson’s opinion, the Federalists had wrecked it? Easy.

Article V of the U.S. Constitution enabled “the people of the Union, assembled by their deputies in Convention,” to “decide” which issues should belong to the federal government and which should fall to the states. Jefferson approvingly dubbed this process “the ultimate arbiter” between state and federal power. 

Madison, although not quite as concerned about federal power as Jefferson, was, nevertheless, a strict constitutionalist. As such, he opposed the endless expansion of the federal government beyond what the Constitution had allowed. This author previously wrote about Madison: “The Virginian gradually developed into an outspoken states’ rights advocate who co-founded the Jeffersonian-Republican Party, which was characterized by its opposition to [Federalist Party Founder Alexander] Hamilton’s ‘loose interpretation of the Constitution.’ He even supported the right of states to stand against unconstitutional federal actions, a far cry from his call for a national veto over state laws.”

Madison and Jefferson may not have always agreed on federal issues. But on this, they could agree: the federal government had no right to undercut the supreme law of the land, and it was, and always would be, essential for the American people to invoke Article V to prevent such overreach.

Today, as in early America, the states have once again been left in Washington’s dust. We have, indeed, lost the “equilibrium.” Perhaps ambition did not counteract ambition as Madison anticipated it would. But whatever the reason, one thing is alarmingly clear: the spirit of monarchism, which Jefferson warned about, has finally settled over America. Fortunately, looking to both men — these paragons of political philosophy and friendship — we find exactly the answer we need: Article V of the U.S. Constitution, Jefferson’s ultimate arbiter, is still just as relevant today as it was then.

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