It is a conservative commonplace to write scornfully of the expansion of rights, especially when an explosive number of them leads to a rights inflation. In “Of Rights and Choices” a professor of constitutional law has done a good job of deflation. “If rights are a good thing, constitutional rights must be even better, [and fundamental constitutional rights best of all]. But [he asks] for whom?” The argument requires a supplement and complement, for there is an equally alluring proposition: “If duties are onerous and unpleasant, then the feebler and fewer of them, the happier we can be.” And there is also, at the same time, a doubt: “But is this the way to guarantee the pursuit of happiness?”
Professor Lino A. Graglia has parodied our culture of rights by ignoring the fact that it sprang from a culture of duties. He mocks the thought of Thomas Jefferson. “If we are endowed by the Creator with certain inalienable rights, I think the Creator should put more effort into the enforcement.” Of course the Creator, the Lord God of Genesis, was concerned not only with ordering a good cosmos, controlled by such subtle principles that it took a Newton to formulate the law of gravity, but also ordering Adam (and Eve) to obey one simple prohibition, the “test commandment,” “Of the fruit of the tree of the knowledge of good and evil thou shalt not eat.” It’s our nature to prefer to listen to the serpent and taste the apple rather than to heed conscience and obey. Thus we lost Paradise, and we continue to pay the penalty for our sin. The original sin against our social compact is to claim and enjoy our rights while ignoring our duties. The God who endows us with the dignity of intelligence also places upon us the burden of heeding the warning and knowing the consequences of disobeying the “Thou shalt nots.” The God of the Bible makes sacred history the majestic effort of prophets to define the duties by listening to the “small voice,” and warning of penalties we must pay for neglecting them.
Are we to read the Bill of Rights narrowly or broadly? Graglia’s essay begins by supposing that either we are generous, that is “liberal,” in finding more and more rights in the penumbra of those in the Constitution, or mean, that is “conservative,” in sticking to the letter and intent of the authors. He ends by saying “neither narrowly nor broadly, but simply in the utmost good faith, to mean, as best can be determined, what its various provisions were intended to mean, neither more nor less.”
Although Graglia professes to know of rights only as “a legally protected interest,” and to be ignorant of “moral rights,” he expects us to interpret the words of the legislators with “utmost good faith.” That is only the first way in which our culture of rights rests upon a culture of duties. In the negative form of this commandment: “Thou shalt not misinterpret.”
To whom more than to Thomas Jefferson should we look to answer the hard questions about rights? He formulated A Summary View of the Rights of British America, the Declaration of Independence, the Rights of Citizens of the Commonwealth of Virginia, and especially the Code of religious liberty. Although he was our ambassador (Minister Plenipotentiary) in Paris when his friend James Madison led the move to add the Bill of Rights to the Constitution, it is Jefferson who towers above his contemporaries as the great philosopher of rights. Yet we continue to ignore the fact that his full account was, in his language, of “Natural Rights and Duties.”
Could we be faced with a fallacious interpretation of our legal and moral relations because we have not paid attention to the duty side of the ledger? It is as though we could borrow money and not have debts. We are bombarded daily with the fallacy of considering human as only masculine, as though male could have any meaning without female. The converse is no less absurd. It’s nonsense to have time that is only future with no past, or space that can have up without down. Wall Street, we are reminded by brokers, is not limited to one-way traffic.
Mr. Jefferson, as Secretary of State, reported to the Cabinet of President Washington that relations between nations are statements of reciprocal “rights and obligations.” Isn’t that what we now mean when we say that our system is not merely one of liberty but “liberty under law” or “ordered liberty”? What Jefferson meant by duties was rooted in the Ten Commandments of Moses. If the “Jefferson Bible” means anything, in the version of the Decalogue revised by Jesus, “The love of God. . . is but a branch of our moral duties, which are generally divided into duties to God and duties to man.” Yet this does not, Jefferson adds, rule out the morality of the atheist. The full statement of the basis of the moral commandments is found in the second table of the Decalogue: “Thou shalt not kill, commit adultery, steal, bear false witness,” which Jefferson found necessary and universal, and resting on the nature of obligation between persons in society.
Self-interest, or rather self-love, or egoism, has been more plausibly substituted as the basis of morality. But I consider our relations with others as constituting the boundaries of morality. With ourselves we stand on the ground of identity, not of relation, which last, requiring two subjects, excludes self-love confined to a single one. To ourselves, in strict language, we can owe no duties, obligation requiring also two parties. Self-love, therefore, is no part of morality. Indeed it is exactly its counterpart. It is the sole antagonist of virtue, leading us constantly by our propensities to self-gratification in violation of our moral duties to others. Accordingly, it is against this enemy that are erected the batteries of moralists and religionists, as the only obstacle to the practice of morality. Take from man his selfish propensities, and he can have nothing to seduce him from the practice of virtue. Or subdue those propensities by education, instruction or restraint, and virtue remains without a competitor. Egoism, in a broader sense, has been thus presented as the source of moral action. It has been said that we feed the hungry, clothe the naked, bind up the wounds of the man beaten by thieves, pour oil and wine into them, set him on our own beast and bring him to the inn, because we receive ourselves pleasure from these acts. So Helvetius, one of the best men on earth, and the most ingenious advocate of this principle, after defining “interest” to mean not merely that which is pecuniary, but whatever may procure us pleasure or withdraw us from pain, says, “the humane man is he to whom the sight of misfortune is unsupportable, and who to rescue himself from this spectacle, is forced to succor the unfortunate object.” This is indeed true. But it is one step short of the ultimate question. These good acts give us pleasure, but how happens it that they give us pleasure? Because nature hath implanted in our breasts a love of others, a sense of duty to them, a moral instinct, in short, which prompts us irresistibly to feel and to succor their distresses, and protects against the language of Helvetius, “what other motive than self-interest could determine a man to generous actions? It is as impossible for him to love what is good for the sake of good, as to love evil for the sake of evil.” The Creator would indeed have been a bungling artist, had he intended man for a social animal, without planting in him social dispositions. [references to the French text of Helvetius omitted].
By studying Jefferson on duties we get to the heart of this most conscientious of political statesmen, and this allows us to comprehend the importance of protecting rights. The highest duty of the citizen is to defend his country, the patriotic motive, but this is done primarily by educating people in their duties as well as acquiring useful knowledge, languages, mathematics, history and science. On all levels, from the time of primary schooling, the literature to be learned is for its didactic import. The aim of the university, he noted, is to teach “virtue.” When Jefferson accepted office, such as becoming governor of Virginia, during the Revolutionary War, it was to perform the duties of that office. This was also true of every office he held. In his letters Jefferson stresses the need of fulfilling one’s duties and teaching children what their duties are and how to make wise decisions, to chose right against wrong. Biographers have been reluctant to deal with the dutiful side of Jefferson, because it might make him appear a prig. Jefferson himself never wanted to be a rigid moralist, but to use charm in inculcating wisdom, and to fit rules to circumstances. We now think only that Jefferson defended rights and liberty as “pursuit of happiness.” But his life was more truly obedience to duty. Responsibilities require doing what may be unpleasant. He toiled to answer every letter by his own hand, using a contraption to make a copy to be preserved. Towards the end of his life we catch him wishing to throw off the burden. But the good habit triumphed over a wayward inclination. The record of a career documented by over 18,000 letters is of a man who took pains to answer every “favor,” as he politely called inquiries, and to keep copies of his answers. Jefferson lived a life of duty, and it was, he wrote (October 4,1823, to Hugh P. Taylor) “the duty of every good citizen to use all the opportunities, which occur to him, for preserving documents relating to the history of our country.” If Jefferson hadn’t fulfilled his duties, one might say in the title of a classic used for training the young, “The Whole Duty of Man,” a volume in his library, we could not exercise our right to know the detailed history of our nation’s founding.
It would be ridiculously wrong to assume that Jefferson always did the duties he recognized and professed. A cynical account of his career could be written and probably has long since been published and forgotten, showing how he broke most or all of the rules he took such care to formulate. And, what has become the most painful aspect of American history, if not of Western culture as a whole, he did not succeed either in abolishing slavery (though he ended the slave trade) or in extending the universal principle, “All men are created equal,” to blacks. What is reassuring in Jefferson’s case is that he did recognize his own hypocritical position as a slave owner who was also chief author of the Declaration of Independence. He knew he didn’t have a practical solution.
To whom better than to Thomas Jefferson can be put five tough questions about rights and duties as raised in Graglia’s essay? Whether Jefferson’s answers are as successful as the Declaration of Independence in expressing “The American Mind” and carrying conviction is for the reader to decide. In our present situation of moral confusion, Jefferson’s writings might prove to be the richest source for drawing up a Bill of Duties to correspond to the Bill of Rights, which by now seems, as Graglia concludes, rather quaint. Since by doing his duty Jefferson impoverished himself, a Jefferson Reader is greatly to be preferred to McGuffey’s. Jefferson never promises riches as a reward for virtue. The five questions are as follows.
1. Is the Jeffersonian vision the desire to change our society into one with individual persons with “all possible rights?”
2. Can “rights [be] costless benefits”?
3. Can there be legal rights and duties independent of moral rights and duties?
4. If any citizen is to exercise a right, what is the duty of all citizens?
5. Is it only the rights of others that limit any citizen’s exercise of his or her rights?
1. Does the Jeffersonian vision seek to change our society into one in which individual persons have “all possible rights?”
When we take into account the range of duties acknowledged by Jefferson to guide his actions, it is truer to say of his vision that the good society is one in which its members fulfill all their duties. The supreme duty is that of the relation of individual conscience to the Creator. This is a sacred relationship to which others have no public access. Priests in particular make it their business to manage human consciences; and when they are in league with princes, there comes the greatest wrong which Jefferson recognized. One of the victims of the alliance of throne and altar was the greatest moral reformer. He was crucified. The rights of religious liberty are to prevent such a tragic evil. Jefferson in a letter to Noah Webster dated December 4, 1790, defined the function of rights as “fences against wrong, which they mean to exempt from the power of their governor….”
In Jefferson’s system of rights and duties, the function of rights is to enable persons to do their duties. There can be no genuine right that goes against a duty, especially against the supreme religious duty. There can be no right in the name of religion that violates fundamental morality. Since religious groups are voluntary, they are not bound to tolerate any divergence from their creeds or perversions of their sacraments, and they are free to excommunicate heretics and schismatics. Yet when it is a matter of moral right and wrong, there is no protection under “free exercise of religion” for cannibals or for those who sacrifice children to Baal. The exercise even of what is a sacred right is not beyond good and evil.
The historian of the American enlightenment, Adrienne Koch, in the year of her early death, 1971, published Jefferson in a series “Great Lives Observed.” In a penultimate paragraph she found expression of “a Jeffersonian message.” It comes from Gandhi. The Mahatma had been asked by the Director of UNESCO how the modern world could defend rights and satisfy the “unquenchable desire for freedom.”
I learned from my illiterate but wise mother that all rights to be deserved and preserved came from duty well done. Thus, the very right to live accrues to us only when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define duties of Man and Woman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for.
It is sad that Professor Koch’s half dozen books do not spell out why Jefferson is a philosopher of duties as well of rights, or exactly the ways in which duties are prior to rights in the life of the good person and the good society. I interpret her use of Gandhi’s reply to be an invitation to correct the one-sidedness of nearly all books on Jefferson. On the best authority, that of Steven H. Hochman of the Carter Center of Emory University, I learn that Dumas Malone expressed disappointment that Jefferson had not said more about obligations to balance what he said about rights. He did often presuppose good citizens who knew and performed their duties. For my part, I would demur that Jefferson, in his letters mainly, has much to say about duties. Indeed in a recent book on the religious life of Thomas Jefferson, the chapter on duties is longer than that on rights.
2. Can “rights [be] costless benefits”?
A wise old economist, John Maurice Clark, once wrote:
Those who have new rights to conquer cannot easily visualize the duties that go with them, or even the fact that new rights carry new duties and are forfeit otherwise. Still harder to realize are the dangers of power without adequate social purpose. When all these requirements have been measurably met, we can claim to be an economic community.
The best brief statement of the benefits of rights and the requirements of duties comes from the First Inaugural, 1801. By our political compact we gain “our equal right to the use of our own faculties, to the acquisition of our industry, to honor and confidence from fellow citizens.” What must we give to secure such rewards? Faithfulness to our “benign religion” in what is common to the various forms: “honesty, truth, temperance, gratitude, and love of man.”
Sometimes, Jefferson puts the proposition hypothetically as he did to his friend John Adams: If we enjoy a right to pursue happiness, then we have a duty to aim at the happiness of others. Negatively, in a sort of “thou shalt not”: “No man has a natural right to commit aggression on the equal rights of another. This is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third.”
What follows, with regard to our expansion of rights, is the implication that we must correspondingly expand our duties to guarantee these rights. Does the right to life forbid all use of violence? Not only would this principle condemn us for ignoring the cost, our obligation, but also it would condemn us as criminal in our spendthrift borrowing, which burdens the next generation with debt. Jefferson had a troubled financial history, trying, to the very end, to pay off the debts against lands he had inherited, and paying off debts he had incurred to keep his plantations producing, and supporting his public service, his book collecting, and building of Monticello, there entertaining a wide circle of friends and political associates.
The duty we have scorned is that of paying our own debts and not saddling the next generation with debt. We thereby deprive our children of their right to enjoy the fruit of their labor, the usufruct of the earth. In a letter to his friend James Madison (1789), Jefferson claimed that public debt should be paid off, by the generation that borrows, in 19 years.
The money is lent on these conditions, is divided among the living, eaten, drank, and squandered. Would the present generation be obliged to apply the produce of the earth and of their labor to replace their dissipations? Not at all. I suppose that the received opinion, that the public debts of one generation devolve on the next, has been suggested by our seeing habitually in private life that he who succeeds to lands is required to pay the debts of his ancestor or testator, without considering that this requisition is municipal only, not moral, flowing from the will of the society which has found it convenient to appropriate the lands become vacant by the death of their occupant on the condition of a payment of his debts; but that between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another…
3. Can there be legal rights and duties independent of moral rights and duties?
Jefferson’s philosophy of rights and duties was as thoroughly moral as the man himself. That is, rights cannot be dissociated from duties. Gilbert Chinard, historian of ideas, was reminded of the great philosophy of the categorical imperative as he studied Jefferson, but he did not pursue the question because he had no particular text. Jefferson’s library contained a French interpretation of Kant’s philosophy, but there is no evidence of Jefferson’s perception of any resemblance. Jefferson was a patriot, and the principle of a nation’s self-preservation was the one exception to strict and scrupulous observance of “written law.” But this should not surprise us, since the revolutionary founders of new nations began as the most criminal of law-breakers, whose crime was to deny the legality of the old order, and who, as traitors, would have been hanged, had they not succeeded in their defiance.
Jefferson justifies his position by appealing to a higher duty than “strict observance of the written law,” that is, “saving our country when in danger.” Here the higher duty is justified by preservation of a system of natural rights.
A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those enjoying them with us; thus absurdly sacrificing the end to the means.
Kant might well ask whether any person of good will should lie and kill for his country. It is clear that Jefferson parted from the rigorous standard of Quakers and other Christian pacifists who forbid all war on the basis of “Thou shalt not kill.” (Cf. endnote 28.)
A most carefully reasoned defense of the political principle of keeping treaties, was an application of the moral principle that promises should be kept. There are two documents. The first is “Queries as to the Rights and Duties of the United States under Treaties with France, and the Laws of Neutrality.” The second is a position paper (April 28, 1793) of Jefferson as Secretary of State in President Washington’s cabinet, “Opinion on the question whether the United States have a right to renounce their treaties with France, or to hold them suspended till the government of that country shall be established.”
Jefferson’s important query asks about a “principle” relating to rights and duties, whether it is “now an established part of the law of nations?” The significance of this is that even when there is no legislature to write a law, as there is not between nations, there are still principles distinguishing right from wrong. This is a familiar idea in literature: Antigone, in Sophocles’s drama, appeals to “unwritten law.” Since it is not the law of any nation, but a law above all nations, it is traditional to call it natural or divine law.
Why did Jefferson devote so much energy and time to the question, whether when circumstances change, may a nation suspend a treaty with another nation, even “renounce [it] altogether … or declare it null?” No doubt part of the story is that it was the Secretary of the Treasury, Alexander Hamilton, who had formulated the relativistic view, giving Jefferson an important matter of state in which he could develop a qualified absolutistic position. Hamilton posited as a basis for annulling the treaty that France had changed its form of government, and might become a military despotism. Jefferson replied:
If possibilities would void contracts, there never could be a valid contract, for possibilities hang over everything. Obligation is not suspended till the danger is become real…. But can a danger which has not yet taken its shape, which does not yet exist, and never may exist, which cannot therefore be defined – can such a danger, I ask, be so imminent that if we fail to pronounce on it in this moment, we can never have another opportunity of doing it?
As to the “danger,” this is whether the treaty gives France “a right to call on us” for military assistance in the West Indies, and that is whether “we are obliged to go to war…?” The reception of a minister of the French Republic is not pertinent to the treaty, argues Jefferson against Hamilton, and does not itself mean that should war endanger the United States, it might not then annul the treaty.
There are, therefore, some conditions that do justify breaking a treaty, but these must be according to the law of nations, and Jefferson turns to authorities whose texts he cites. He was a more careful scholar than commonly given credit for; he did not issue conclusions as though he had ended the discussion with his fiat:
Questions of natural right are triable by their conformity with the moral sense and reason of man. Those who write treatises of natural law, can only declare what their own moral sense and reason dictate in the several cases they state. Such of them as happen to have feelings and a reason coincident with those of the wise and honest part of mankind, are respected and quoted as witnesses of what is morally right or wrong in particular cases. Grotius, Puffendorf, Wolf, and Vattel are of this number. Where they agree their authority is strong; but where they differ, (and they often differ), we must appeal to our own feelings and reason to decide between them. The passages in question shall be traced through all these writers; that we may see wherein they concur, and where that concurrence is wanting.
There is one condition under which we may annul a treaty, exercising “the right of self-liberation,” that is, declaring that the obligation is no longer binding. This is wherein the four authorities agree: “Treaties remain obligatory, notwithstanding any change in the form of government, except in the single case, where the preservation of that form was the object of the treaty.” The limitation is a just one, Jefferson argues, and is based on laws of the Creator and on conscience and reason, and not simply a convenience. Hence, the principle governing relations between persons individually and between nations is the same “moral law of our nature.” It is not circumstances as such that could annul a contract.
4. If any citizen is to exercise a right, what is the duty of all citizens?
American citizens are constantly being told that, according to the Bill of Rights, a “wall of separation” has been erected between church and state and that the Constitution has “separated” government from religion. The phrase “wall of separation” is from Jefferson’s letter to Baptists of Danbury, written in 1802, and it is part of the eminence of the statesman that this has been accepted as a commentary on the meaning of the phrase “there shall be no establishment of religion.” Notably the Supreme Court decisions of 1947 and 1948 in the cases of Everson v. Board of Education and McCollum v. Board of Education, accepted it, but other justices reject it, notably William Rehnquist, in dissent from the majority in the case of Wallace v. Jaffree. Evidently some citizens, whose view is represented by Justice, and now Chief Justice, Rehnquist, feel their right to the “free exercise [of religion] is a sacred duty which must be carried out in school, home and church. The citizen’s conscience is a response to the Creator, acknowledged in the Declaration, and this relation implies all the virtues on which the morality of the republic is based. To acknowledge the moral order, including its divine origin, providential development, and final divine review, is not specific to any particular sectarian establishment, and therefore not condemned as unconstitutional. A right is commonly protected by what Jefferson calls a “fence,” and religious liberty is fenced off from the control of governmental power.”
Jefferson recognized “general religion” that is included in the curriculum of the University of Virginia, even when particular sectarian doctrines and cults are to be kept off the campus. “The general religion,” by contrast to that of the sects, is “a religion of peace, reason and morality….” What is clear in Jefferson’s vision of the rights and duties of religious freedom is that it is no right of the state to control the rules of membership in a voluntary society, as a church is defined to be. Therefore “no church is bound by the duty of toleration to retain within her bosom obstinate offenders against her laws.”
To whom does the “duty of tolerance” apply? To each citizen as citizen, although he or she may belong to one sect. The sect may view itself as the only right way to worship God, and from Jefferson’s private Arminian perspective, Calvin is totally mistaken, and even a worshipper of a demon. But as citizen, as governor, and as president, Jefferson had to allow Calvinists their rights. It is the duty of the public official to make no discrimination favorable, for example, to Dr. Joseph Priestley’s Unitarian church over any of the many orthodox Presbyterian churches in Philadelphia. Privately Jefferson had no respect for Athanasius or any other defender of the doctrine that God is one in substance, but three in persons. In Jefferson’s judgment, this is as absurd and ridiculous as believing the one can be three, and three one. But to believe nonsense is no crime, and the error of the former establishment to regard Unitarianism as a danger to public order must not be reversed by civil penalties imposed upon Trinitarians. It may very well be significant that Jefferson slips into the biblical language of imperatives, “Thou shalt not.”
We have no right to prejudice another in his civil enjoyments because he is of another church. If any man err from the right way, it is his misfortune, no injury to thee; nor therefore art thou to punish him in the things of this life because thou supposeth he will be miserable in that which is to come–on the contrary according to the spirit of the gospel, charity, bounty, liberality is due to him.
Let us generalize from this fundamental statement of civic morality, or civil religion, if you will, for these are in Jefferson’s vision, the same. If my neighbor is to have the real right to his choice of a religion, then it is my real duty to respect his choice. Isn’t it necessary to have a society of persons enjoying real rights and that society is also one in which persons observe real duties?
Let us follow this line of reasoning one step further. The “duty of toleration” is justified on grounds of the charity of the Gospel, evidently meaning that true Christianity of Jesus’ commands “in the spirit … [of] charity, bounty, liberality.” These are, then, the rights of others. If this is the civil religion of Americans, then this is a higher religion than that of churches that are intolerant.
Recognition of the equal rights of a variety of sects, the pattern of the states of Rhode lsland, Pennsylvania, New York, and Maryland has become part of our culture of rights and duties. Schismatic quarrel and exclusive sectarianism have held on among some, but it is notably Jeffersonian to find a Jewish devotee of Reinhold Niebuhr’s theology, Will Herberg, author of Protestant, Catholic, Jew. The American civil religion penetrates the churches. Alexander Campbell, regarded as founder of the Disciples’ Church, visited Jefferson at Monticello. Clearly the Sage of Monticello welcomed a preacher who had outgrown the older exclusiveness of anathematizing the heretic and schismatic in the name of one true church. Jefferson heard many sermons and probably liked only the ones that expounded the Sermon on the Mount and other teachings and parables of Jesus. One enthusiastic response to the gospel of toleration is found in his a letter to the Quaker William Canby. Jefferson could match his successor Lincoln in putting the case for toleration in the form of a story.
An eloquent preacher … is said to have exclaimed aloud to his congregation that he did not believe there was a Quaker, Presbyterian, Methodist, or Baptist in heaven. Having paused to give his hearers time to stare and wonder, he added that in heaven God knew no distinctions but considered all good men as his brethren and as brethren of the same family. I believe … that he who steadily observes these moral precepts in which all religions concur will never be questioned at the gate of heaven as to the dogmas in which they all differ. That on entering there all these are left behind us, and the [conflicting leaders and sects] will find themselves united in all principles which are in concert with the reason of the supreme mind [Jefferson to William Canby, of disputed date].
Jefferson clearly was ready to follow the logic of toleration. Already in Notes on Virginia he had gone beyond Locke in not limiting toleration to theists. Probably he learned from the denunciation and obloquy he suffered, to restrain his wit in public. His critics were not ready to allow atheism or polytheism. The step beyond ecumenism in the Christian sense was universal ecumenism. In a well known letter to John Adam he noted that Christians are but a fraction of the human race. Jefferson’s philosophy anticipated our kind of pluralism.
5. Is it only the rights of others that limit any citizen’s exercise of his or her rights?
It is sometimes taken as an axiomatic truth that the only limit on the exercise of one’s right is not to deprive another of his or her right. It is easy to find thoughts of this sort in Jefferson. Perhaps the best is the prescription that wise government ought to “restrain men from injuring one another [but] leave them otherwise free to regulate their own pursuits of industry … and shall not take from the mouth of labor the bread that it has earned.” This is a negative form of reciprocity that might be stated, “Thou shalt not intrude upon thy neighbor’s rights, even as he or she ought not to intrude upon thine.” But is there not also in Jefferson’s system a positive form of reciprocity? Would it not be “Thou shalt concern thyself with thy neighbor’s life, liberty and happiness, even as he or she ought to be concerned with thy wellbeing”? Might this extend to “not exercising thy right because such exercise of that right would harm him or her and his or her family”?
Clearly, Jefferson reasons in this way with regard to lotteries. Perhaps his most careful essay on a moral problem is “Thoughts on Lotteries” of February 1826, half a year before his death on July 4. The logic is first an elaborate argument in defense of “every one[’s] … natural right to chose for one of [such a risky venture as farming] as he thinks most likely to furnish him subsistence.” Then comes the negative side that some games of chance “produce nothing that is useful to society’ and endanger the wellbeing of individuals … or of others dependent on them.”
Why this interior dialogue in Jefferson’s mind? Can there be justification for sale of a large property by lottery? He gives a reasoned justification that this is a case of risking the price of a ticket with great benefit to the landowner and to his creditors, to repay debts. Before 1769 “every person exercised the right freely,” but it was then made “unlawful but when approved and authorized by a special act of the legislature.” Jefferson goes on to examine various “purposes for which they have allowed [a lottery] in practice,” and these cases divide into nine sorts. A summation of the whole preceding argument follows:
We have seen, then, that every vocation in life is subject to the influence of chance; that so far from being rendered immoral by the admixture of that ingredient, were they abandoned on that account, man could no longer subsist; that, among them, every one has a natural right to choose that which he thinks most likely to give him comfortable subsistence; but that while the greater number of these pursuits are productive of something which adds to the necessaries and comforts of life, others again, such as cards, dice, etc., are entirely unproductive, doing good to none, injury to many, yet so easy, and SO seducing in practice to men of a certain constitution of mind, that they cannot resist the temptation, be the consequences what they may; that in this case, as in those of insanity, idiocy, infancy, etc., it is the duty of society to take them under its protection, even against their own acts, and to restrain their right of choice of these pursuits, by suppressing them entirely; that there are others, as lotteries particularly, which, although liable to chance also, are useful for many purposes, and are therefore retained and placed under the discretion of the legislature, to be permitted or refused according to the circumstances of every special case, of which they are to judge; that between the years 1782 and 1820, a space of thirty-eight years only, we have observed seventy cases, where the permission of them has been found useful, by the legislature, some of which are in progress at this time. These cases relate to the emolument of the whole State, to local benefits of education, of navigation, of roads, of counties, towns, religious assemblies, private societies, and of individuals under particular circumstances which may claim indulgence or favor. The latter is the case now submitted to the legislature, and the question, is, whether the individual soliciting their attention, or his situation, may merit that degree of consideration which will justify the legislature in permitting him to avail himself of the mode of selling by lottery, for the purpose of paying his debts.
With the entire general debate stated, the lawyer gets down to the particular case. It is his own need to sell a large tract of land to pay his debts. He reviews his public life, for services to his state and to his nation and to his university, over a period of 61 years, were undertaken, at the sacrifice of his estate: “Everyone knows how inevitably a Virginia estate goes to ruin, when the owner is so far distant as to be unable to pay attention to himself….”
The moral order of Jefferson was one of duties, as evidenced in a society that deprives the vast majority, 98% say some studies, of the pleasure of gambling, because the opportunity may spell disaster for a small minority, 2%, who tend to become compulsive gamblers. Jefferson had observed the phenomenon as a young student at the College of William and Mary in Williamsburg, where he is said to have turned from gambling as a form of evil. The analogous problem of chronic drunkenness could lead to prohibition of spirits as it now does of cocaine, etc. Some sociologists, finding that pornographic literature triggers sexual violence, have argued that the duty of society to prevent crime justifies limitation upon freedom of expression. Thomas Jefferson would not belong to the present American Civil Liberties Union.
The Jefferson who considered duties as well as rights is not guilty of the charges leveled by Graglia against overgenerous judges. Jefferson’s good society was one of good men and women doing their duties. He was himself such a person, supremely confident that all men and women could know right from wrong, and be able from their hearts to recognize virtuous relations, and from their heads to draw up rules of good habits from the experiences of evil habits to be avoided. That some ways lead to happiness and others to misery is an important kind of knowledge. Jefferson would add, “the most important kind.”
The Jeffersonian philosophy of rights and duties is not to be blamed for the explosion and inflation of rights. It is by doing our duties that we protect our rights, and rights come at cost of these duties. Surely, part of the correction of the errors which Lino A. Graglia has detected in our present situation is to recover the full vision of Jefferson.
1. Lino A. Graglia, “Of Rights and Choices,” National Review, Vol.XLIV (February 12, 1992), 39-41.
2. TJ to Francis W. Gilmer, Monticello, June 7, 1816, develops the correlative ideas in the functions of legislation. Paul Leicester Ford, ed., The Writings of Thomas Jefferson (New York 1899), Vol.X, 31-33. Also, a slightly earlier letter to John Taylor, May 28, 1816, expounds a “moral principle of good government … the right of instructing representatives, and their duty to obey.” Ford, op. cit., Vol. X, 27-31. “What constitutes a state?” Not walls or moats, but “Men who their duties know; but know their rights: and knowing dare maintain.”
3. It is states as well as citizens that bear to each other rights and obligations. This is most explicit in TJ to James Madison, Paris, August 28, 1789: “I know but one code of morality for men whether acting singly or collectively. He who says I will be a rogue when I act in company with a hundred others but an honest man when I act alone, will be believed in the former assertions, but not in the latter.” Ford, op. cit., Vol. V, 1892, 111. See application “Opinion on French Treaties,” Ford, Vol. VI, 219-231.
4. TJ to Thomas Law, Poplar Forest, June 13,1814, Thomas Jefferson Writings (New York, 1984). 1336. This is perhaps the clearest identification of natural duties as commandments of Moses, brought down from Sinai on two tablets of stone (Exodus 20 and Deuteronomy 5).
5. Jefferson’s first inaugural address appeals to the virtues inculcated by a “benign religion,” Writings, loc. cit., 492-496.
6. TJ to Thomas Law, see endnote 4,1336-1337.
7. In “Report of the Commons for the University of Virginia, August 4, 1818,” morality is linked to “the supreme ruler of the universe, the author of all the relations of morality, and of the laws and obligations these infer. … The moral obligations [are] those in which all sects agree….” Writings, loc. cit., 467.
8. Edwin Morris Betts and James Adam Bear, Jr., The Family Letters of Thomas Jefferson (Columbia, Mo., 1966). A valuable collection of TJ’s expressions about the duties of public office can be read in John P. Foley, The Jefferson Cyclopedia (New York, 1900), 268-269.
9. In a letter to John Adams, Monticello, Jan. 11,1817, TJ tells of “drudging at the writing table long hours.” He felt obliged to answer civilly, even if he had never heard of the writer. “This is the burthen of my life, a very grievous one indeed, and one which I must get rid of.” Ford, op. cit., Vol. X, 72.
10. TJ to Hugh P. Taylor, October 4, 1823. Writings, Monticello edition, A. E. Bergh, ed. (Washington, D. C., 1905), Vol. XV, 470.
11. The Whole Duty of Man [supposed author, Richard Allestree] (London, 1716). In E. Millicent Sowerby, Catalogue of the Library of Thomas Jefferson (Washington, D.,C., 1952-1959), Vol. 2, 158-159.
12. In every decade there seems to be some effort to destroy Jefferson’s reputation for integrity. An able reply is Virginius Dabney, The Jefferson Scandals: A Rebuttal (New York, 1981).
13. Several of the most poignant letters on slavery included by the editor Merrill D. Peterson in the Library of America (and Penguin edition of Writings cited above) are TJ to Henri Gregoire, February 25, 1809, 1202; TJ to Edward Coles, Monticello, August 25, 1814, 1343-1346; TJ to Jared Sparks, February 4, 1824, 1484-1487; and to James Heaton, Monticello, May 20, 1516. One study is John Chester Miller, The Wolf by the Ears (New York, 1977). The author took his title from TJ: “We have the wolf by the ears; and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other” (1820).
14. I have not discovered an explicit system of duties or a system of rights in Jefferson’s writings. I believe the many scattered references, dealing with a right or a duty as the occasion demanded, will show several guiding principles. Most prominent is the idea that whenever there is one person’s rights, it is the duty of another to respect that right (Ford, op. cit., Vol. VI, 229). Another is that a right cannot go counter to a duty, but that some duty outranks others, for example, “the law of self-preservation overrules the law of obligation.” (Ford, op. cit., Vol. VI, 221). There are some duties that go beyond the law, but if neglected may need to be enforced by legislation (Ford, op. cit., Vol. I, 434). Duties to others, such as not harming their “life, liberty, property or reputation” limits our freedom to speak or write and requires us to publish only “true facts” (Ford, op. cit., Vol. V, 112). With these and other principles, a Jeffersonian moral political theory could be constructed.
15. Beyond the obvious civic duties of paying taxes, serving in defense of the state, not betraying one’s country, earning a living and contributing to the general welfare, Jefferson stresses willingness to serve in a public capacity when one’s fellow citizens desire it, and to do one’s duties faithfully while in office, but limiting one’s term with a willingness to lay down the responsibilities so that another can have the opportunity. Less specifically “civic,” are the duties of living in harmony with others, dealing civilly with all and to speaking the truth in charity, and striving to increase knowledge. These rules of good action or of virtue are so pervasive in Jefferson’s writing that one quickly arrives at the sacred number ten among duties. Although fairly representative, a list of duties, as a list of rights, can never be complete.
16. Jefferson lived according to high standards of honor, which linked honesty and integrity of moral character. He expected the government’s executives to conduct affairs so as never to bring shame upon the citizens (Ford, Vol. 11, 169). As in this conclusion to the Declaration, “sacred honor” may require sacrifice of “lives and fortunes.” In sharp contrast to “honor” are “honors.” These external rewards given by others do not bring happiness, indeed the contrary, “envy and enmity.” His contempt for inherited titles is well known, but preferments or political honors of a republic also may be only “splendid torments.” (See passages cited Jeffersonian Cyclopedia, loc. cit., 411). In the important “Report of the Commissioner for the University of Virginia,” August 4, 1818, occurs what we call an “honors system” of student self-policing. The basis is internal rather than external sanction. “Pride of character, laudable ambition, and moral dispositions are innate correctives of indiscretions of that lively age….” Not only does Jefferson judge these inner checks less degrading, but also more successful. He adds a footnote that “a police exercised by the students themselves … from … them for initiation into the duties and practices of civil life.” Writings, 469. The Visitors are “to prescribe their duties….” 470. We must however add that Jefferson noted “some breaches of order” in the Minutes of the Board of Visitors, October 3, 1825. The difficulty was the school-boy reluctance to tell tales, or to “rat” on each other; but this, Jefferson assures us, is only a “prejudice” that “it is dishonorable to bear witness one against another.” Justice and the general good requires “mature and regulated minds.” Ibid., 480.
17. Jefferson’s conception of a supreme religious duty places the responsibility upon each free intelligent agent. The most eloquent statement is the preamble to “A Bill for Establishing Religious Freedom,” passed by the Assembly of Virginia, 1786. (Ford, 11, 237 ff.) Jefferson’s deity may have been only such as his enlightened reason allowed, but as a philosophical ethics, it is such that he could appeal to scriptural conjunction of love of man with love of God.
18. TJ to Noah Webster, Philadelphia, Dec. 4, 1790. Ford, op. cit., Vol. V, 253. In context of a familiar argument that forming a state does not “require a surrender of all of our rights to our ordinary governors.” Rights such as those of our Bill of Rights are “fences against wrong, which they meant to exempt from the power of their governors….” Ibid., 255.
19. That the freedom of exercising one’s religion does not extend to cover immorality may be regarded as self-evident. By “religion” here is meant true or pure religion in amoral sense. In modern terms, religions are, as far as creeds and cults are concerned, boundless in variety, but as far as morals are concerned, uniform. Jefferson refers Webster to his Notes on Religion. These are found in J.P. Boyd, ed. The Papers of Thomas Jefferson (Princeton, N.J.,Vol. I, 1760-1776), 544ff.
20. Quoted by Adrienne Koch, in her last book, Jefferson (Englewood Cliffs, N. J., 1971), 174, and judged “a Jeffersonian message.” Koch does not give the source. It is A Symposium Edited by Unesco: Human Rights: Comments and Interpretations, Introduction by Jacques Maritain, (London, 1949), 18.
21. After writing this paper I find that a political scientist began to link rights to duties. See A.J. Beitzinger, “Political Theorist,” in Merrill D. Peterson, ed., Thomas Jefferson: A Reference Biography (New York, 1986) 81-99. This essay is an exception to the dissociation of rights from duties in Jefferson’s political philosophy as commonly misread. Also very helpful in reconsidering Jefferson’s larger context is Stephen A. Conrad, “Putting Rights Talk In Its Place: the Summary View Revisited,” Jeffersonian Legacies, Peter S. Onuf, ed. (Charlottesville, Va., 1993), 259-280.
22. A very clear example of Jefferson’s correlation of equal rights with equal duties is found in “A Bill Declaring Who Shall Be Deemed Citizens of this Commonwealth.” Those who are “Intitled to all rights, privileges, and immunities of free citizens in this commonwealth … [are] subject to the same duties, impositions and restrictions as the citizens of this commonwealth.”( Writings, loc. cit., 374-375, emphasis added).
23. Charles B. Sanford, The Religious Life of Thomas Jefferson (Charlottesville, Va, 1984). Ch. 111 is on “The Rights of Man,“ 16-22; Ch. V on “The Duties of Man,” 3155. Sanford concludes that Jefferson’s equal emphasis on responsibilities has been neglected, and that we are subject to a biased view of his “philosophy and human society,” 54.
24. John Maurice Clark Alternative to Serfdom (New York, 1948), 151-152. Clark, among many publications, also wrote The Ethical Basis of Economic Freedom (Westport, Conn., 1955), and contributed to Education for Citizen Responsibility, Franklin L. Burdette, ed. (Princeton, 1942).
25. TJ, First Inaugural Address, Writings, loc. cit., 492496. In original form in Ford, op. cit., Vol. VIII, 47, the date is March 4, 1801.
26. On Jefferson and Adams, see Merrill D. Peterson, Adams and Jefferson: A Revolutionary Dialogue (Athens, Ga., 1976).
27. TJ to Francis W. Gilmer, Monticello, June 7, 1816, Ford, op. cit., Vol. X, 32.
28. Pacifists, such as Quakers, appeal to a different “higher obligation” that rules out the use of force. On the relationship between Jefferson and a pacifist philosophy see Reginald C. Stuart, The Half-Way Pacifist: Thomas Jefferson’s View of War (Toronto, 1978). 29. TJ to James Madison, Paris, September 6, 1789, Ford, op. cit., Vol. V, 115-124.
30. Gilbert Chinard, Thomas Jefferson: The Apostle of Americanism (Boston, 1929), 525.
31. C. F. D. de Villiers, Philosophie de Kant (Metz, 180 l), Sowerby, Catalogue, loc. cit. 1364, Vol. II, 53.
32. TJ to John B. Colvin, Monticello, September 20, 1810, Ford, op. cit., Vol. IX, 279. Obviously Jefferson as a revolutionary was in defiance of British laws and indeed a traitor, who, had he failed, would surely have been hanged. He had to believe in justification by a higher law.
33. Monticello edition (Washington, DC, 1904), Vol. XVII, 293-299. John P. Foley, Cyclopedia, loc. cit., 874-876 quotes extensively from “Opinion on French Treaties,” from Ford, op. cit., Vol. VI, 220-227.
34. 28 April, 1793, Monticello ed. (Washington, 1904), Vol. III, 226-243.
35. Ibid., 230-231.
36. Ibid., 237.
37. “To Messers. Nehemiah Dodge and Others, a committee of the Danbury Baptist Association, in the State of Connecticut,” TJ, January 1, 1802, contains a principle that man “has no natural right in opposition to his social duties.” The President of the United States concludes: “I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of Man and tender you for yourselves and your religious association, assurances of my high respect and esteem.” Jefferson expresses the piety of a righteous magistrate, and shows a context of a common faith. This is quite unlike secularist indifference to religion, and is certainly not hostile to voluntary religious associations of citizens.
38.472 US. 38, 91, 105 S. Ct. 2479, 258 (1985).
39.TJ to Thomas Cooper, April 12, 1823.
40. In various places the justification of toleration is to secure social harmony, e.g. TJ to Governor John Henry, Ford, op. cit., Vol. III, 159.
41.On Calvin, TJ to Dr. Benjamin Waterhouse, Monticello, June 26, 1822, Ford, op. cit., Vol. X, 219-220, and TJ to Dr. Thomas Cooper, Nov. 2, 1822, 242-244.
42. See Foote, op. cit., footnote and Sanford, op. cit., footnote 23.
43. Foley, The Jefferson Cyclopedia, loc. cit.
44. Jefferson stresses in his first Inaugural, 1801, that political intolerance is “as despotic, as wicked, and as capable of as bitter and bloody persecutions.” Ford, op cit., Vol. III, 2.
45. Will Herberg, Protestant, Catholic, Jew: An Essay in American Religious Sociology (Garden City, 1956).
46. See Henry K. Rowe, “Alexander Campbell, ”Dictionary of American Biography (New York, 1929), Vol. III, 446-448. The title of one of Campbell’s books has a Jeffersonian flavor: A connected view of the principles and rules by which the living oracles may be intelligibly and certainly interpreted, of the foundation on which all Christians may form one communion, and of the capital positions sustained in the attempt to restore the original gospel and order of things… [Campbell then goes on to a theme that Jefferson would have doubted, millennialism.] (Bethany, Va., 1835).
47. TJ to William Canby, September 18,1813, Monticello ed., Vol. XII, 376.
48. On Jefferson and Adams see Paul Wilstach, Correspondence of John Adams and Thomas Jefferson, 1812-1826 (Indianapolis, 1925).
49. First Inaugural, see endnote 5 and 40.
50. “Thoughts on Lotteries,” Monticello, February, 1826, Ford, op. cit., Vol. X, 362-372. The passage quoted, from “Thoughts on Lotteries,“ may also be found in Saul K. Padover, The Complete Jefferson: Containing His Major Writings, Published and Unpublished, Except His Letters (Freeport, N.Y., 1969, originally 1943), 1289-1297.