I have to admit I find Thomas Jefferson highly contradictory in Chapter 5. In previous research I documented how Jefferson confided to liking “the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures.” Then, just two years later, affirming he “approved from the first moment, of the great mass of what is in the new constitution.” In other words, old TJ agreed with Alexander Hamilton and the Federalists the federal government needed to be autonomous from the various state governments and entirely self-sustaining, yet complimentary to the state governments insofar as the federal government would have jurisdiction in those spheres that affected the sum rather than the disparate parts.
But Jefferson’s Opinion on the Constitutionality of a National Bank, his response to Hamilton’s Report on a National Bank, reads like a repudiation of the late 1780s version of himself. Holloway summarizes Jefferson’s various complaints against a national bank “[seem] to imply that the federal government should, in the exercise of its own powers, be guided by what is permitted according to state law. And this idea seems further to imply that states may legislate with the purpose of restraining the federal government in the exercise of its own powers. This in turn suggests that the states ought to be considered as equal or even superior to the federal government” (pp. 77-78). This is not an argument for a complimentary, self-sustaining, autonomous government; rather, this is a lament for a governmental structure like the old Articles of Confederation arrangement, something he had only a mere four and two years previously conceded was unacceptable. The lone aspect of Jefferson’s new argument where he seems to be consistent (and also supportive of my earlier thesis), is his contention the bank bill does in fact overstep the international and intraunion Constitutional mandate by authorizing Congress to regulate the internal commerce of the states as opposed to “only a state’s ‘external commerce,’ or its commerce with other states, foreign nations, or Indian tribes” (pp. 80-81).
Holloway also is critical of Jefferson’s position. Holloway contends, very persuasively, that Jefferson maintains untenable ground in that the former Secretary of State so narrowly defines the Commerce Clause that Congress is effectively impotent, and the country is again back to an Articles of Confederation arrangement (p. 81). Not only does Jefferson insist state laws can regulate the federal government (which begs the question why have a national government at all), Jefferson claimed federal legislation is automatically void if it in any way touches internal commerce. As Holloway comments, “It would probably be impossible completely to disentangle external and internal commerce: in many cases Congress would inevitably reach the latter while intending only to control the former” (p. 81). Practically speaking, of course there’s going to be overlap between external (or “international” and “intraunion”) and internal commerce – that’s the nature of economics; the point from a Constitutional mandate perspective is, is the federal government aiming to focus on the former or the latter, and is it trying to minimize its involvement in the latter? Yet, Jefferson believed in an unworkable vision of the Commerce Clause nonetheless.
Per the first paragraph, for those that are unaware, Jefferson’s problems with the Constitution as it was originally written and adopted were the lack of a bill of rights and “rotation of office,” i.e., term limits, specifically for the President.
One can already see in this the foundation of Jefferson’s theory of nullification.
I’ve changed the title and ceased referring to these posts as “reviews” because they aren’t properly reviews. Instead, I am now calling them “Commentaries.” I will write up a more traditional, summative review once I’ve finished the book.