It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.
What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?
I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.
Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.
But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again.
I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog.
I do think it critical to discussions of Jefferson to keep in mind that he was a public official for most of his life at nearly all levels of government. The philosopher governed, which no doubt, shaped his relationship to theory.
I also think that Jefferson as a racial thinker was, as he said of the Declaration, expressing the minds of his fellow citizens, many of whom had already made up their minds about where blacks were to fit (or not) in the new American nation.
Posted by: AGR | June 06, 2013 at 11:31 AM
There is a sophisticated defense of Jefferson's argument against the rule of the dead hand constitution in Michael Otsuka's book _Libertarianism Without Inequality_, )(OUP, 2005) if anyone is interested in that. I'll admit that, in the end, the argument seemed more like a reductio than convincing to me, but it is the most sympathetic and sophisticated treatment of the idea that I've seen.
Posted by: Matt | June 06, 2013 at 02:33 PM
The best, in-depth examination of Jeffeson's Constitutional thinking is David Mayer's "The Constitutional Thought of Thomas Jefferson," (U. Virginia Press, 1994).
Posted by: Brad Smith | June 06, 2013 at 05:53 PM
Other excellent considerations (and very current) are two of Peter S. Onuf's books: Jefferson's Empire: The Language of American Nationhood and The Mind of Thomas Jefferson. Prof. Onuf and I consider TJ's views on the generations in the book about TJ that we are presently working on.
Posted by: AGR | June 06, 2013 at 11:24 PM
Hi, thank you all for taking the time to comment. The point I'd like do just throw back out there is the question of what is at stake for us in not counting Jefferson as one who had or has anything constructive to say about jurisprudence. Legal theory was fundamental to shaping Jefferson's thinking, I would want to argue, and secondly, our hangups about authoritative text and historical change remain haunted by Jefferson's own foray into these very issues.
Obviously, a blog post about books on Jefferson's thought (even if just limited to political and constitutional thought) would be a different kind of thing entirely. Mayer is good on the issue of the generations, as is Herbert Sloan in his book, Principle and Interest. For both, though, law and the jurisprudential origins of the concept of usufruct are tangential to how they understand Jefferson's thinking here. On Jefferson's thought more broadly, one can follow the grooves laid down by Peter Onuf's writings to work by Hannah Spahn and Brian Steele (friend of the show), and Kevin Hayes, who does foreground Jefferson's legal career and legal reading in his understanding of the development of Jefferson's mind. Of course, Onuf's work pays big dividends not only on its own terms and in continuing collaboration with distinguished colleagues, but in refocused attention by other scholars on the link between constitutionalism, expansion, empire, and state formation (Eric Hinderaker, Patrick Griffin, Max Edling, Alison LaCroix, Eliga Gould, Aziz Rana, and Craig Yirush come to mind). To get even broader, work by Adam Rothman, Lauren Benton, Walter Johnson, Carroll Smith-Rosenberg, James Tully, and Christopher Tomlins asserts itself here, too, and to go back to Jefferson, Anthony Wallace's Jefferson and the Indians is still required reading on the sage of Monticello.
Thank you for the Otsuka reference- I will take a look, although I must admit that when the word libertarian gets used I think of total lack of attention to actually existing historical and political conditions, but that is no excuse not to read further.
Finally, to the first comment- thank you especially for taking the comment not once but twice. I think we would agree that it is a mistake to think of Jefferson as having a system or a doctrine, even a singular theory- I would add that that is what I think is fascinating about his thinking. I've always liked Jay Fliegelman's line- Jefferson as a participatory observer, a reflexive and reflective actor. That is to say, I don't think of Jefferson as a philosopher in our sense of the word- that actually misses the power of this thinking, which was constantly engaged, I would argue, even when he said it was not, in the practical art of government, especially if we consider a rather expansive concept of governance. Jefferson governed not only states and territories and municipalities, but people. This won't be news to anyone here, but a central part of the fact that he governed was the fact that he owned- even in his home he governed himself and others. What I would add is that he thought about that, and this had ramifications for how he thought about other things. Along the lines of Foucault's recently translated lectures, he theorized the relationship between the government of self and others, and that thinking, which is not different from action or reality, was and continues to be of significance. What I would like to get at is what Jefferson himself called that mode of action called thinking.
Just so, I want to press the point about Jefferson as a racial thinker. Undoubtedly, Jefferson is reflecting (and reflecting on) the limits of the political and economic context in which he finds himself. But he is also doing work in the Notes on the State of Virginia, on himself and, eventually, on the terms of political debate in his time, and that on a variety of fronts. Jefferson is as much an agent as a product- the question of the place of Africans and African Americans in particular, free and enslaved, in the new republic and the Atlantic world was not completely settled- and Jefferson is working to settle it, and he is going to try and do so precisely with the idea of their incapacity to be active agents- subjects, rather than objects, of law and politics. To return to the last point I made in the original post, yes, we have to look at Jefferson in context, but we also have to look at what he and others, for good and for ill, do to their contexts. And that kind of historical practice provides reinvigorated focus, I hope, on how we act in and on our own.
Thank you again, and with respect and admiration,- matt crow
Posted by: Matthew Crow | June 07, 2013 at 02:38 PM