It is the tendency of all governments to encroach on the rights of the people. Limited constitutions protect those rights, and serve as a line of defense against government intrusion. Rights that are not specifically identified for protection are not assumed to be under the jurisdiction of government, however; they are retained by the people and are exercised as an element of their individual self-governance. in their sovereign capacity.
"There are rights which it is useless to surrender to the government and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing; the right of free commerce; the right of personal freedom. There are instruments for administering the government so peculiarly trustworthy that we should never leave the legislature at liberty to change them. The new Constitution has secured these in the executive and legislative department, but not in the judiciary. It should have established trials by the people themselves, that is to say, by jury. There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army." --Thomas Jefferson to David Humphreys, 1789. ME 7:323
"Freedom of religion; freedom of the press; freedom of person under the protection of the habeas corpus; and trial by juries impartially selected, I deem [among] the essential principles of our government, and consequently [among] those which ought to shape its administration." --Thomas Jefferson: 1st Inaugural Address, 1801. ME 3:322
"One of the amendments to the Constitution... expressly declares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,' thereby guarding in the same sentence and under the same words, the freedom of religion, of speech, and of the press; insomuch that whatever violates either throws down the sanctuary which covers the others." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:382
48.1 The Right of Free Correspondence
The right of one citizen to correspond freely with another is a natural right, arising from the need of individuals to communicate with one another in the conduct of the business of life. The protection of this right is one of the basic reasons why men form themselves into societies and establish governments.
"A right of free correspondence between citizen and citizen on their joint interests, whether public or private and under whatsoever laws these interests arise (to wit: of the State, of Congress, of France, Spain, or Turkey), is a natural right; it is not the gift of any municipal law, either of England, or Virginia, or of Congress, but in common with all other natural rights, it is one of the objects for the protection of which society is formed and municipal laws established." --Thomas Jefferson to James Monroe, 1797. ME 9:422
"The right of free correspondence is not claimed under [the] Constitution [of the United States], nor the laws or treaties derived from it, but as a natural right, placed originally under the protection of our municipal laws and retained under the cognizance of our own courts." --Thomas Jefferson: Virginia Petition, 1797. ME 17:361
"The Federal Constitution alienates from [the State courts] all cases arising, 1st, under the Constitution; 2dly, under the laws of Congress; 3dly, under treaties, etc. But this right of free correspondence, whether with a public representative in [the State] General Assembly, in Congress, in France, in Spain, or with a private one charged with a pecuniary trust, or with a private friend, the object of our esteem, or any other, has not been given to us under, 1st, the Federal Constitution; 2dly, any law of Congress; or 3dly, any treaty; but... by nature. It is therefore not alienated but remains under the protection of our [State] courts." --Thomas Jefferson to James Monroe, 1797. ME 9:423
"The right of our fellow citizens to represent to the public functionaries their opinion on proceedings interesting to them is unquestionably a constitutional right, often useful, sometimes necessary, and will always be respectfully acknowledged by me." --Thomas Jefferson to the New Haven Committee, 1801. ME 10:269
"In canvassing [the] opinions [of a public official, a citizen does] what every man has a right to do, and it is for the good of society that that right should be freely exercised." --Thomas Jefferson to Noah Webster, 1790. (*)
"In principle and consequence, [the violation of right] extends to all of our fellow citizens, whose safety is passed away whenever their representatives are placed, in the exercise of their functions, under the direction and coercion of either of the other departments of government; and one of their most interesting rights is lost when that of a free communication of sentiment by speaking or writing is suppressed." --Thomas Jefferson: Virginia Petition, 1797. ME 17:363
"Did we ever expect to see the day, when, breathing nothing but sentiments of love to our country and its freedom and happiness, our correspondence must be as secret as if we were hatching its destruction!" --Thomas Jefferson to Elbridge Gerry, 1799. ME 10:86
"The attempt which has been made to restrain the liberty of our citizens meeting together, interchanging sentiments on what subjects they please and stating their sentiments in the public papers, has come upon us a full century earlier than I expected." --Thomas Jefferson to William Branch Giles, 1794.
48.2 Freedom of Conscience
The right to hold one's own views, and to think and to decide for oneself on any question, is an essential right for a free people. A person is free to believe anything he wishes, even if in error, and may not be persecuted nor denied the right to hold public office for those beliefs. The First Amendment protections for freedom of religion, of speech, of the press and of assembly, all together protect the Freedom of Conscience.
"No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." --Thomas Jefferson to New London Methodists, 1809. ME 16:332
"That form [of self-government] which we have substituted [for that which bound men under the chains of monkish ignorance and superstition] restores the free right to the unbounded exercise of reason and freedom of opinion." --Thomas Jefferson to Roger C. Weightman, 1826. ME 16:182
"A right to take the side which every man's conscience approves in a civil contest is too precious a right, and too favorable to the preservation of liberty, not to be protected by all its well-informed friends." --Thomas Jefferson to Katherine Sprowle Douglas, 1785. FE 4:66, Papers 8:260
"Subject opinion to coercion: whom will you make your inquisitors? Fallible men, governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity? But is uniformity of opinion desirable? No more than of face and stature." --Thomas Jefferson: Notes on Virginia Q.XVII, 1782. ME 2:223
"The freedom of opinion and the reasonable maintenance of it is not a crime and ought not to occasion injury." --Thomas Jefferson to Gideon Granger, 1801.
"The legitimate powers of government reach actions only and not opinions." --Thomas Jefferson to Danbury Baptists, 1802.
"This country, which has given to the world the example of physical liberty, owes to it that of moral emancipation also. For as yet, it is but nominal with us. The inquisition of public opinion overwhelms in practice the freedom asserted by the laws in theory." --Thomas Jefferson to John Adams, 1821. ME 15:308
"It is inconsistent with the spirit of our laws and Constitution to force tender consciences." --Thomas Jefferson: Proclamation Concerning Paroles, 1781. FE 2:430, Papers 4:404
"The error seems not sufficiently eradicated that the operations of the mind as well as the acts of the body are subject to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg." --Thomas Jefferson: Notes on Virginia Q.XVII, 1782. ME 2:221
"[The] liberty of speaking and writing... guards our other liberties." --Thomas Jefferson: Reply to Philadelphia Democratic Republicans, 1808. ME 16:304
"We are bound, you, I, and every one to make common cause, even with error itself, to maintain the common right of freedom of conscience." --Thomas Jefferson to Edward Dowse, 1803. ME 10:378
"It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstances, become his own. It behooves him, too, in his own case, to give no example of concession, betraying the common right of independent opinion, by answering questions of faith, which the laws have left between God and himself." --Thomas Jefferson to Benjamin Rush, 1803. ME 10:381
"I am... averse to the communication of my religious tenets to the public: because it would countenance the presumption of those who have endeavored to draw them before that tribunal, and to seduce public opinion to erect itself into that inquisition over the rights of conscience which the laws have so justly proscribed." --Thomas Jefferson to Benjamin Rush, 1803. ME 10:380
"We ought with one heart and one hand to hew down the daring and dangerous efforts of those who would seduce the public opinion to substitute itself into that tyranny over religious faith which the laws have so justly abdicated. For this reason, were my opinions up to the standard of those who arrogate the right of questioning them, I would not countenance that arrogance by descending to an explanation." --Thomas Jefferson to Edward Dowse, 1803. ME 10:378
48.3 Harmful Opinions
"While the principles of our Constitution give just latitude to inquiry, every citizen faithful to it will deem embodied expressions of discontent and open outrages of law and patriotism as dishonorable as they are injurious." --Thomas Jefferson: Reply to Leesburg Citizens, 1809.
"[Montesquieu wrote in his Spirit of the Laws XII,c.12:] 'Words carried into action assume the nature of that action. Thus a man who goes into a public market-place to incite the subject to revolt incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which words are employed. They do not become criminal, but when they are annexed to a criminal action: everything is confounded if words are construed into a capital crime, instead of considering them only as a mark of that crime.'" --Thomas Jefferson: copied into his Commonplace Book.
"The following [addition to the Bill of Rights] would have pleased me: The people shall not be deprived or abridged of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty or reputation of others, or affecting the peace of the [United States] with foreign nations." --Thomas Jefferson to James Madison, 1789.
48.5 The Right to Bear Arms
In a nation governed by the people themselves, the possession of arms to defend their nation against usurpers within and without was deemed absolutely necessary. This right is protected by the 2nd Amendment to the Constitution. A gun was an everyday implement in early American society, and Jefferson recommended its use. "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks." --Thomas Jefferson to Peter Carr, 1785. ME 5:85, Papers 8:407
"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed." --Thomas Jefferson to John Cartwright, 1824. ME 16:45
"One loves to possess arms, though they hope never to have occasion for them." --Thomas Jefferson to George Washington, 1796. ME 9:341
"I learn with great concern that [one] portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms. I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house." --Thomas Jefferson to Jacob J. Brown, 1808. ME 11:432
"No freeman shall be debarred the use of arms (within his own lands or tenements)." --Thomas Jefferson: Draft Virginia Constitution (with his note added), 1776. Papers 1:353
"None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important." --Thomas Jefferson to -----, 1803. ME 10:365
48.6 Other Rights
The rights of citizens are not limited to those specifically enumerated in the Constitution. The Ninth Amendment protects all other rights that are retained by the people, and that are not specifically named.
"Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance." --Thomas Jefferson: Legal Argument, 1770. FE 1:376
"My opinion on the right of expatriation has been so long ago as the year 1776 consigned to record in the act of the Virginia code, drawn by myself, recognizing the right expressly and prescribing the mode of exercising it. The evidence of this natural right, like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophistical investigations of reason, but is impressed on the sense of every man. We do not claim these under the charters of kings or legislators, but under the King of Kings. If He has made it a law in the nature of man to pursue his own happiness, he has left him free in the choice of place as well as mode, and we may safely call on the whole body of English jurists to produce the map on which nature has traced for each individual the geographical line which she forbids him to cross in pursuit of happiness." --Thomas Jefferson to John Manners, 1817. ME 15:124
"[We in America entertain] a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens resulting not from birth but from our actions and their sense of them." --Thomas Jefferson: 1st Inaugural, 1801. ME 3:320
"The manners of every nation are the standard of orthodoxy within itself. But these standards being arbitrary, reasonable people in all allow free toleration for the manners as for the religion of others." --Thomas Jefferson to Jean Baptiste Say, 1815. ME 14:262
"Every man should be protected in his lawful acts, and be certain that no ex post facto law shall punish or endamage him for them." --Thomas Jefferson to Isaac McPherson, 1813. ME 13:326
"The sentiment that ex post facto laws are against natural right is so strong in the United States that few, if any, of the State constitutions have failed to proscribe them. The Federal Constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong." --Thomas Jefferson to Isaac McPherson, 1813. ME 13:327
"In America, no other distinction between man and man had ever been known but that of persons in office exercising powers by authority of the laws, and private individuals. Among these last, the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:8
ME, FE = Memorial Edition, Ford Edition. See Sources.
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