Thomas Jefferson's Correspondence Concerning Adding a Bill of Rights to the U.S. Constitution

Letter from Thomas Jefferson To James Madison Paris, Dec. 20, 1787

DEAR SIR, -

...To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general [i.e., national] government which is not given, while in the particular [i.e., state] ones all is given which is not reserved, might do for the audience to whom it was addressed, but...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 declared that in express terms ... Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inferences.

Letter from Thomas Jefferson To James Madison Paris, July 31, 1788

DEAR SIR, -

...I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want retouching. What these are, I think, are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to Juries, Habeas corpus, Standing armies, Printing, Religion and Monopolies. I conceive there may be difficulty in finding general modifications of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in times of peace, and Monopolies, in all cases, than not to do it in any. The few cases wherein these things may do evil, cannot be weighed against the multitude wherein the want of them will do evil ... Examine the history of England: see how few of the cases of the suspension of the Habeas corpus law have been worthy of that suspension ... That operation has now become habitual, and the minds of the nation almost prepared to live under its constant suspension. A declaration that the government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed. The declaration that religious faith shall go unpunished, does not give impunity to criminal acts dictated by religious error... My idea then is that, tho[ough] proper exceptions to these general rules are desireable and probably practicable, yet if the exceptions cannot be agreed on, the establishment of the rules in all cases will do ill in very few. I hope therefore a bill of rights will be formed to guard the people against the federal government, as they are already guarded against their state governments in most instances...

Letter from James Madison To Thomas Jefferson New York, Oct. 17, 1788

DEAR SIR, -

...Among the advocates for the Constitution there are some who wish for further guards to public liberty and individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable that they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety. My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light:

1) Because I conceive that in a certain degree, though not in the extent argued by Mr. [James] Wilson, the rights in question are reserved by the manner in which the federal powers are granted.

2) Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution, by prohibiting religious tests, opened a door for Jews, Turks and infidels.

3) Because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

4) Because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience, it is well known that a religious establishment would have taken place in that state, if the legislative majorities had found, as expected, a majority of the people in favor of the measure ... Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number ... Wherever there is an interest and power to do wrong, wrong will generally be done ... The difference [between a republic and a monarchy], so far as it relates to the point in question-the efficacy of a bill of rights in controuling abuses of power-lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing and uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands-that is, in a majority of the people-and consequently the tyrannical will of the sovereign is not to be controuled by the dread of an appeal to any other force within the community.

What use then, it may be asked, can a bill of rights serve in popular Governments? I answer the two following, which though less essential than in other Governments, sufficiently recommend the precaution:

1) The political truths declared in that solemn manner acquire by degrees the character fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.

2) Altho[ugh] it be generally true, as above stated, that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions in which the evil may spring from the latter sources; and on such, a bill of rights will be good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may, by gradual and well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury. At the same time, I must own that I see that there is no tendency in our Governments to danger on that side...

Supposing a bill of rights to be proper, the articles which ought to compose it admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions, however strongly marked on paper, will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose ever their ordinary efficacy ... Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger cannot be very great that the few will thus be favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many...

Letter from Thomas Jefferson To James Madison Paris, Mar 15, 1789

DEAR SIR, -

...Your thoughts on the subject of the Declaration of rights in the letter of Oct 17. I have weighed with great satisfaction. Some of them had not occurred to me before, but were acknowledged just in the moment they were presented to my mind.

In the arguments in favor of a declaration of rights, you omit one which has great weight with me: the legal check which it puts into the hands of the judiciary. This is a body which, if rendered independent & kept strictly to their own department, merits great confidence for their learning & integrity. In fact, what degree of confidence would be too much for a body composed of such men as Wythe, Blair & Pendleton? On characters like these the "civium ardor prava jubentium" [i.e., citizenry's passion for bad laws] would make no impression.

I am happy to find that on the whole you are a friend to this amendment. The Declaration of Rights is, like all other human blessings, alloyed with some inconveniences, and not accomplishing fully it's object. But the good in this instance vastly overweighs the evil.

I cannot refrain from making short answers to the objections which your letter states to have been raised:

1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer: A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration as far as it goes; and if it goes to all material points nothing more is wanting. In the draft of a constitution which I had once a thought of proposing in Virginia, & printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed; but the deficiencies would have been supplied by others, in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal constitution. This instrument forms us into one state as to certain objects, and gives us a legislative & executive body for these objects. It should therefore guard us against their abuses of power within the field submitted to them.

2. A positive declaration of some essential rights could not be obtained in the requisite latitude. [That is, a declaration could never cover all rights adequately.] Answer: Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.

3. The limited powers of the federal government & jealousy of the subordinate governments afford a security which exists in no other instance. Answer: ... The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view it is necessary to the federal government also, as by the same text they may try the opposition of the subordinate governments.

4. Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the Inconveniences which attend a Declaration of Rights, & those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in it's useful exertions. But the evil of this is short-lived, trivial & reparable. The inconveniences of the want of a Declaration are permanent, afflicting & irreparable. They are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it's turn, but it will be at a remote period. I know there are some among us who would now establish a monarchy. But they are inconsiderable in number and weight of character. The rising race are all republicans. We were educated in royalism; no wonder if some of us retain that idolatry still. Our young people are educated in republicanism; an apostasy from that to royalism is unprecedented & impossible. I am much pleased with the prospect that a declaration of rights will be added, and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it...

Letter from Thomas Jefferson To Francis Hopkinson Paris, March 13, 1789

DEAR SIR, -

...I approved, from the first moment, of the great mass of what is in the new constitution ... What I disapproved from the first moment also was the want of a bill of rights to guard liberty against the legislative as well as executive branches of the government, that is to say to secure freedom in religion, freedom of the press, freedom from monopolies, freedom from unlawful imprisonment, freedom from a permanent military, and a trial by jury in all cases determinable by the laws of the land ... The enlightened part of Europe have given us the greatest credit for inventing this instrument of security for the rights of the people, and have been not a little surprised to see us so soon give it up.