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Jefferson Reconstructed

Jefferson & Civil Liberties: The Darker Side

by Leonard W. Levy
Harvard, The Belknap Press, 240 pp., $4.50

Mr. Levy believes that “a strong pattern of unlibertarian, even anti-libertarian thought and behavior” extended throughout Jefferson’s life, and he condemns him for it with vigor and severity. His indictment is impressive.

The unfamiliar Jefferson at one time or another supported loyalty oaths; countenanced internment camps for political suspects; drafted a bill of attainder; urged prosecutions for seditions libel; trampled on the Fourth Amendment; condoned military despotism; used the Army to enforce laws in time of peace; censored reading; chose professors for their political opinions; and endorsed the doctrine that the means, however odious, were justified by the ends.

The bulk of the book consists of an attempt to document these and other specific charges, and to construct a general portrait of Jefferson’s character and personality, the lineaments of which may be suggested by such phrases as “stupendous ego,” “incapacity for self-criticism,” and “a spirit rarely capable of disinterestedness.”

Mr. Levy admits he has made no attempt to present a comprehensive and balanced study of the record of Thomas Jefferson in the field of civil liberties. He has written an intentionally one-sided book, and this one side is a “dark” one. Although one may have reservations about such a project, one must accept with some equanimity the author’s definition of his task and resist the temptation to supply evidence on the positive side. Mr. Levy is well aware of this “other” Jefferson and pays dutiful tribute to him. Somewhat confusingly, he describes the book as a study of “libertarian leadership,” and in the final chapter states that Jefferson “was, to be sure, a libertarian‌” Indeed, in a curious way, it is this other Jefferson who dominates Mr. Levy’s argument. There is a peculiar ferocity in his attack, a tendency to strain and stretch the evidence, as if the case were not strong enough to rest on the dispassionate presentation of the facts.

Much of the evidence put together in this volume will be familiar to the student of American history. The trial of Aaron Burr has been related many times, and it would require a revisionist tour de force to upset the conventional view that Jefferson was out to get Burr, and that he was not over-scrupulous with respect to the judicial procedures to be used in doing so. Similarly with the Embargo Acts of 1807-1809 and their enforcement: In his great desire to avoid war with either France or Britain. Jefferson played fast and loose with the Constitution, and especially with the guarantee against unreasonable search and seizure. The general tendency has been to regard these and a few other instances as aberrations in what was otherwise a long record of devotion to the principles of individual liberty, and to conclude that actual achievement in this field far outweighed these deviations. Mr. Levy insists that what others have regarded as aberrations were instead ingredients in an unlibertarian, even antilibertarian pattern.

His case would be a stronger one if the evidence were presented with more meticulous care for detail. For example, Levy cites a law abridging freedom of expression enacted by the Virginia legislature, and associates Jefferson with it by saying that as governor, he signed it. He neglects to report that Jefferson only “met with” this bill in a newspaper report, and that under the Virginia Constitution of 1776, the governor did not have the right of veto. Is the evidence sufficient to prove that Jefferson approved of this law?

Another instance of dubious presentation of evidence is the account of Jefferson’s attempt to secure a suitable textbook in English history for use at the University of Virginia. Jefferson proposed to have reprinted a version of Hume’s History of England, abridged by an Englishman named John Baxter, and purged of what Jefferson regarded as its unfortunate Tory bias. This project leads Levy to accuse Jefferson of censorship and intellectual deceit. He quotes passages from Jefferson’s letters describing Baxter’s method: “(Baxter) gives you the text of Hume, purely and verbally, till he comes to some misrepresentation or omission‌he then alters the text silently, makes it what truth and candor says it should be, and resumes the original text again, as soon as it becomes innocent, without having warned you of your rescue from misguidance.” This gives the impression that Jefferson meant to foist off upon the unsuspecting student a “politically bowdlerized” edition of Hume, to deceive him into thinking that he was reading Hume’s own words, when actually he was frequently reading Baxter’s silent emendations of Hume. This would certainly have been gross intellectual deceit. However, Levy has omitted certain facts which, when known, suggest a different picture of the episode. In the first place, Baxter’s version was published under his own name, not Hume’s, and he did not mention his indebtedness to Hume. For this he was criticized by Jefferson, who stated that the title should have been “Hume’s history of England abridged and rendered faithful to fact and principle.”1 Nowhere did Jefferson suggest that Baxter’s name should not appear as the person responsible for the amended version. If Jefferson intended to have the book published under the title he suggested, and with Baxter identified, he was not guilty of the sort of deceit charged. Again, the omission of relevant facts has made it impossible for the reader to obtain an account of the incident sufficiently complete to use as the basis of responsible judgment.

Equally serious is the lack of any theoretical analysis of the different kinds of liberty with which the author is concerned. This results in a failure to distinguish between issues that involved questions of civil liberties and those which did not, as in the various situations arising out of the Embargo Acts. Levy’s argument here apparently rests on the unexamined assumption that the use of the Army to enforce federal law in time of peace is, in and of itself, a violation of civil liberty. Governors Faubus and Barnett would doubtless draw aid and comfort from this position, for if, as Levy says, Jefferson “made domestic war” and “fought some of his own people,” then so did Eisenhower at Little Rock, Arkansas, and Kennedy at Oxford, Mississippi.

But Mr. Levy’s gravest failing is his refusal to consider the fundamental question of the conditions necessary for the enjoyment of civil liberty. This is particularly evident in the section on the loyalty oath enacted by the revolutionary government of Virginia. Mr. Levy treats this oath as if it belonged in the same category as those provided for in recent national legislation such as the anti-Communist affidavits of the Taft-Hartley and National Defense Education Acts. But this ignores important differences between the two kinds of oaths. The Virginia oath was to support a revolutionary government, and to renounce a definite and prior allegiance to Great Britain. It therefore had as much in common with a naturalization oath as with recent loyalty oaths. The historical situations were entirely different in their essential character. The Revolution was a genuine revolution in the constitutional sense: It sought to establish a new state, not merely a new government, and the process of establishment was not formally completed until 1783. Between 1776 and that date Virginia was in a condition of partial civil war; some Virginians gave, or were expected to give, assistance to the previous sovereign.

This was the existing situation. Its implications for both the theory and practice of civil liberties may be examined in terms of the social contract doctrine embodied in the Declaration of Independence and used by the revolutionists to justify their break away from Great Britain. The Virginians were in something very like a “state of nature,” for theirs was the kind of “open and visible rebellion” which, according to Locke, produced effects very little different from a dissolution of society. They proceded in some measure to act out the theory of the contract and they ran almost immediately into its usually concealed ruthlessness. The contract was a pledge of mutual protection and an expression of the consent on which all legitimate governments are based. That consent, “in the beginning,” had to be unanimous: Those who did not wish to join the new contract were left out. The oath of allegiance was thus an almost literal fulfillment of the social contract. If one accepts the Declaration of Independence in its entirety, one must also accept in some degree the philosophical justification it provided for the Virginia loyalty oath and other measures directed at protecting those who joined in the new contract against those who chose to remain outside.

I have dwelt on the loyalty oath partly in order to emphasize the fact that the Revolution meant the dissolution of one civil state and the establishment of a new one. In such a situation, what liberties are civil liberties? “Civil” implies an organized society, one with a government having both the authority and the power to govern. It implies a society in which internal order, security, and domestic tranquility are the rule and not the exception. These are the prerequisite conditions for the enjoyment of civil liberties, and they in turn rest on the existence of nearly universal and willing consent to a competent government. Anarchy and civil liberty are not compatible.

These are fundamental factors which Mr. Levy ignores. His standards for judging Jefferson are those of the modern libertarian who takes comfortably for granted both the success of the Revolution and the continued durability of republican government. Jefferson did not. He was aware that an ordered society is not an easy, automatic human achievement, and that a constitutional republic is a very rare accomplishment indeed. The attempt to establish the latter, combined with a new and complex form of federalism, was regarded by the men immediately concerned as a great and novel experiment, the outcome of which was uncertain. Mr. Levy knows that the experiment was a success and apparently is unable to conceive that it might not have been.

This lack of imagination is strikingly obvious in his treatment of Jefferson’s attitude toward the press. Jefferson had always thought that a republican government depended upon an informed electorate, and that a free press was necessary to accomplish the latter. The experiences of the 1790’s and thereafter led him to fear that the press, because of irresponsibility, was not carrying out its proper function, and therefore the foundation of republican government (the form most likely to secure the enjoyment of civil liberties) was in jeopardy. What to do? He thought that a few exemplary prosecutions for libel in state courts might induce the papers to be more truthful, but he did not press this solution very vigorously. He explained why in the Second Inaugural. He was interested in seeing whether a government could prove itself to the people even in the face of “falsehood and defamation.” Perhaps it was possible that a republican government could operate and endure even without a responsible press. It was worth a risk, but not the total risk of a final renunciation of the weapon of state court prosecutions. Jefferson therefore sat on the fence for awhile, seeking for a definition of freedom of the press that was compatible with a secure and stable republic. Mr. Levy is certain of the answer, but this is so partly because Jefferson, as the man on the spot, was willing to live with uncertainty.

It is this Jefferson who appears to have escaped Mr. Levy, the Jefferson who was constantly concerned with the operative conditions and methods of a free society. He thought about the proper economic foundations for republican government, about its ethical basis, about the relationship between consensus and democracy, about the psychological prerequisites of freedom. Not even the “darker side” of his record on civil liberties can be understood without consideration of this Jefferson, and he is missing from Mr. Levy’s book. This is scrapbook history, and it is not good enough either for Jefferson or for the study of liberty in America.

Letters

Letters January 9, 1964

  1. 1

    The Writings of Thomas Jefferson, Andrew A. Lipscomb and Albert Ellery Bergh, editors. Washington, D.C., 1903. Vol. XII, p. 406.

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