Thomas Jefferson: On the Omission of a Bill of Rights from the Constitution

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      One of the main grievances of the anti-Federalists was the omission of a bill of rights from the Constitution. The framers had briefly discussed such an addition but rejected the idea for a number of reasons. First, each state had its own declaration of rights that it considered sufficient protection for the people. A second, and even more pertinent, objection was the belief that every man has certain natural inalienable rights that need not be enumerated. In contrast to the Federalist viewpoint, those who supported a list of fundamental rights believed that such an enumeration would provide a needed restraint on the powers of the government. In addition, the courts would have a basis for decisions when a person's rights were infringed upon. Though Thomas Jefferson was not an anti-Federalist, as he himself insisted, and though he highly praised the Constitution, he agreed with those who advocated a bill of rights. The following letter of December 20, 1787, to James Madison, helped to convince the latter that the Constitution needed such an addition.

      I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into legislative, judiciary, and executive. I like the power given the legislature to levy taxes, and for that reason solely I approve of the greater House being chosen by the people directly. For though I think a House so chosen will be very far inferior to the present Congress, will be very illy qualified to legislate for the Union, for foreign nations, etc., yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxes but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased, too, with the substitution of the method of voting by person, instead of that of voting by states, and I like the negative given to the executive, conjointly with a third of either House; though I should have liked it better had the judiciary been associated for that purpose, or invested separately with a similar power. There are other good things of less moment.

      I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the laws of nations. To say, as Mr. Wilson does, that a bill of rights was not necessary because all is reserved in the case of the general government, which is not given, while in the particular ones, all is given which is not reserved, might do for the audience to which it was addressed, but it is surely a gratis dictum [a mere assertion], the reverse of which might just as well be said; and it is opposed by strong inferences from the body of the instrument as well as from the omission of the clause of our present Confederation, which had made the reservation in express terms.

      It was hard to conclude because there has been a want of uniformity among the states as to the cases triable by jury, because some have been so incautious as to dispense with this mode of trial in certain cases, therefore, the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way, that as most of the states had preserved with jealousy this sacred palladium of liberty, those who had wandered should be brought back to it; and to have established general right rather than general wrong. For I consider all the ill as established which may be established. I have a right to nothing which another has a right to take away; and Congress will have a right to take away trials by jury in all civil cases. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse or rest on inference.

Source: The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private, H.A. Washington, ed., 1853-1854, 9 vols.

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