Draft Constitution for Virginia, Part VIII: the Crown and the Cross

Thus far the elements of Thomas Jefferson’s draft constitution for Virginia that have been herein examined – in terms of their continuity with existing practice, their lack thereof, or their origins in classical antiquity – have been discussed mainly by way of the larger context of the widespread constitution writing that occurred across the newly-independent United States in the late 1770s. This has hopefully been a helpful approach. Jefferson was, after all, but one member of a sizeable political and intellectual community. Attempting to understand his actions and his choices is thus potentially facilitated by delving into the activities and motivations of his peers and the manner in which they reacted as a group to the political and social trends and events that they collectively encountered. That being said, there were naturally certain ideas, certain concepts, or certain principles that Jefferson held in isolation from his contemporaries among the Founding Generation. He has, after all, long been heralded as a radical, even among a cohort of men and women who saw fit to overthrow the only political order they had ever known and erect a new and untested framework in its place. Not every conviction that Jefferson held was all that common among the Founders, and thus there were bound to be certain elements of his draft constitution for Virginia that lay somewhere outside of his peers’ consensus as to the proper form a republican government should take. These elements take many and varied forms, but they each communicate something important about the ideal society that Jefferson envisioned and attempted to codify in 1776.

Certain of them are admittedly harder to account for than others. Some of what Jefferson proposed in his draft constitution was novel in 1776, but has since gone on to become de rigueur in the modern United States. America, for instance, is not a monarchy. This fact – stunningly obvious on the face of things – potentially masks the importance of some of the choices Jefferson and his compatriots made in drafting constitutions for their home states, and has the potential to make the transition from a collection of British colonies to an independent republic appear almost inevitable. In point of fact, it wasn't. By challenging the established political order that had underpinned and sustained the existence of the British North American colonies for well over a century, the Founders were making a metaphorical leap in the dark. Their success was far from certain, and the final form that their various ad-hoc revolutionary governments might have taken was similarly ambiguous. In setting out a codified and highly structured government for Virginia during this period of supreme uncertainty – and possibility – Jefferson made several very important decisions that gave tangible form to his grievances with America’s past and his hopes for its future.

The monarchy – mentioned above – was a key part of this vision. In the preamble to his draft constitution for Virginia, Jefferson made it exceedingly clear that his home state would no longer recognize the authority of the reigning British monarch (George III) or any of his descendants or successors. “Be it therefore enacted by the authority of the people,” he declared,

That the said, George Guelf be, and he hereby is deposed from the kingly office within this government and absolutely divested of all it’s rights, powers, and prerogatives: and that he and his descendants and all persons acting by or through him, and all other persons whatsoever shall be and forever remain incapable of the same: and that the said office shall henceforth cease and never more either in name or substance be re-established within this colony.

There are a few specific things to note before moving on to the broader significance of this passage. The first is Jefferson’s invocation of “the authority of the people.” This was a very Lockean idea, that the collective population of a state possessed the authority to depose their anointed sovereign. There was certainly precedent for such a declaration in English history – namely the deposition and execution of Charles I by Parliamentary authorities in 1649 – but it was nevertheless not a doctrine that had seen a great deal of use in orthodox political discourse. Another point worth observing is the manner by which Jefferson chose to address the reigning monarch. Rather than refer to him as, “George the third, King of Great Britain and Ireland, and elector of Hanover” (as George Mason’s successfully adopted constitution for Virginia did), he called him simply “George Guelf.” This was an example of what is sometimes referred to as “descralization” or “desanctification,” whereby a person, object, or idea that has formerly enjoyed a high degree of social esteem is insulted or denigrated as a means of robbing it of its accustomed authority. The House of Guelf (or Guelph) was the extended aristocratic family from which George III descended. Therefore, dispensing with his royal titles and referring to him as George Guelf was a means of demystifying the royal personage and emphasizing the fact that the king to whom Americans were supposed to owe their allegiance was but a man himself. Tellingly, the French Revolutionary government that was responsible for the trial and execution of Louis XVI in 1793 made the same gesture when they began to refer to the deposed king as “Louis Capet” (from the Capetian Dynasty to which he belonged).

            More significant than the way Jefferson chose to depose the monarchy in Virginia, however, is the mere fact of it. Virginia was not simply to refuse recognition to the specific monarch against whom its people nurtured grievances, but rather intended to render the office itself “absolutely divested of all it’s rights, powers, and prerogatives [.]” George III was not simply to be passed over for a more discreet alternative – perhaps one of his sons, or a member of a cadet branch of the House of Guelf. Rather, “He and his descendants and all persons acting by or through him, and all other persons whatsoever [,]” were to remain ineligible to hold royal office in Virginia for all time. Indeed, the office of monarch was to cease to exist altogether, “never more either in name or substance [to] be re-established within this colony.” These were bold, declarative statements that admitted of no ambiguity or ambivalence. Jefferson, with the stroke of a pen, intended to first diminish and then abolish forever the monarchy that had held sovereignty in Virginia for over 150 years. Because, as aforementioned, the United States is today a proudly republican nation, this might seem a rather obvious choice on his part. It must be clearly understood, however, that it was not.

            Not every member of the Founding Generation was as ardently devoted to political republicanism as Thomas Jefferson. Certain among their number, like the moderate pacifist John Dickinson or the ambitious, manipulative Alexander Hamilton, were personally quite attached to the British model of government and would have preferred to see it perpetuated in an independent America. Indeed, Hamilton notably advocated for the presidency as an elected monarchy before the assembled delegates of the Philadelphia Convention in 1787 as a remedy for the weakness of Congress under the Articles of Confederation. Though neither he nor Dickinson were prepared to excuse the abuses that had been committed by the contemporary British government, they were also seemingly unwilling to cast aside a model of administration that have proven capable of overseeing a vast and successful colonial empire. Doubtless they were not alone in this conviction, and while Classical republican philosophy represented a dominant strain of thought among the American colonial elite, it was not necessarily clear, even at the height of revolutionary fervor in the 1770s, whether America was finished with all forms of monarchy or simply with the British monarchy. On this head, it also bears remembering that Jefferson’s monarchy-abolishing draft constitution was written in the spring months prior to the Continental Congress declaring American independence in July, 1776. Had an offer of peace and reconciliation that addressed the colonists’ grievances turned up in Philadelphia in, say, June of that year, the colonies may well have determined to remain subjects of the Crown. This was, it must be admitted, an unlikely scenario given how much blood had already been shed since the beginning of the Revolutionary War in April, 1775. It was not, however, impossible, and for certain residents of the colonies was doubtless fervently hoped for.

            By unequivocally disqualifying monarchy from having any role to play in the political life of Virginia, however, Jefferson was seemingly attempting to steer the Revolution in a distinctly republican direction. In his vision of an ideal government, if his draft constitution is any indication, all power could be clearly traced back to the people. All procedures for electing or appointing legislators, executives, or justices were made explicit and unambiguous, and accountability, in the form of frequent elections and term limits, was of paramount importance. A monarchy whose origins were vague at best and whose authority derived from traditions and precedents shrouded in the mists of time was quite simply incapable of existing within an administrative framework so defined. Some of Jefferson’s contemporaries might have disagreed, might have held that a monarchy that was properly restrained by the law could provide a useful stabilizing or mediatory function. Debates would be held on this very topic in the years to come, and though with the benefit of hindsight it no doubt seems laughable that the United States should ever have chosen to adopt a monarchy of its own, it ought to be understood that the 1770s and 1780s represent an era of experimentation in the history of American government. The creation of a limited monarchy was as valid a choice as empowering an elected presidency, and one to which the history of many modern constitutional monarchies surely attests. It was not, however, a perspective that Jefferson was willing to countenance. His draft constitution for Virginia accordingly bears the stamp of his reactionary republicanism, and should be recognized as such.

            Some of the other particularly novel provisions that Jefferson enshrined in his draft constitution had a more distinctly moral dimension than his dedication to republicanism would necessarily indicate. One clause, for example, stated under the heading “Religion” that, “All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.” This represented both a fundamental upending of established practice and an admission on Jefferson’s part to a cause of which he was particularly fond; namely, freedom of religion. As discussed in weeks past, the state of Virginia was one of several colonies that recognized the Anglican Church of England as the sole established purveyor of personal salvation. This meant that Church activities – poor relief, the upkeep of Church property, and the salary of Church ministers – were funded by locally-collected taxes, and also gave the Anglican hierarchy the exclusive right to operate institutions of higher learning. Under this system, those who professed a religion other than the Anglican Church, or who wished to be associated with no particular organized faith, were nevertheless compelled by law to pay for the upkeep of the colony’s only recognized religious institution.

This became particularly problematic once the evangelical zeal unleashed by the First Great Awakening (approx.1730-1755) led to the growth of Presbyterian, Methodist, and Baptist congregations in Virginia. Members of these communities were required to fund a religious establishment in which they had no stake at the same time that they represented an increasingly substantial social and political force. The Revolution provided temporary relief to these beleaguered populations precisely because of the numbers they represented – the provisional government of Virginia wished to enlist as many people as it could in favor of the Revolution – but the toleration that was permitted during the war years promptly ceased with the resumption of peace in the 1780s. Thomas Jefferson, who believed along with many 17^th and 18^th century Enlightenment reformers that the key to establishing universal peace laid in eliminating all causes of religious persecution, took particular issue with what appeared to him to be a bastardization of basic religious principles. He accordingly drafted the Virginia Statute for Religious Freedom in 1777, though it was not passed by the state legislature until 1786. This piece of legislation laid out a series of objections to Virginia’s Anglican establishment that fixated mainly upon the incompatibility of the personal expression of faith that was an individual’s religion with the mechanisms of state coercion that the Church of England enjoyed the use of. Doubtless because it sought to alleviate the burden under which they lived and worshipped, the Statute received the greatest share of its support from the Nonconformist community, and it ultimately succeeded in breaking down Virginia’s longstanding religious establishment. As of Jefferson’s death in 1824 it remained one of a small number of accomplishments – a list which notably did not include being either Secretary of State or President – of which he was most proud.

As of the drafting of his proposed constitution in 1776, the Virginia the Statute for Religious Freedom was still a year away from being written and decade away from being adopted. All the same, the notion of codifying freedom of conscience appeared already to form a part of Jefferson’s agenda. Indeed, though the abovementioned clause within his draft constitution is considerably more succinct than the later Statute, and delves into none of the moral or logical underpinnings the Sage of Monticello ascribed to religious freedom, it unquestionably represents a stronger legal protection of the free expression of individual religious faith. The Statute for Religious Freedom was, after all, just a statute. A piece of regular legislation, it was thus subject to repeal or alteration by future governments. Jefferson was abundantly aware of this, and he responded, somewhat desperately, by stating at the end of said document that though the government which passed the act had, “No power to restrain the acts of succeeding Assemblies constituted with powers equal to our own […] if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”

The relevant provision of the draft constitution for Virginia conversely required no such elaborate caveat as a means to prevent its being abolished because it was an explicit constitutional provision. Whereas an act of the General Assembly of Virginia would have required only a simple majority (51%) in the upper and lower houses to become law, any amendment to the state constitution that Jefferson proposed in 1776 demanded both an act of the legislature to that effect as well as the assent of the majority of those assembled in fully 2/3 of Virginia’s recognized counties. This represented a reasonably stiff barrier to alteration, and would doubtless have ensured that the government Jefferson sought to erect in his home state would not have been subject to frequent or fundamental changes unless a substantially large majority of the population was in favor of the same. In this sense, promoting freedom of religion via constitutional fiat represented a much safer bet than depending on an act of ordinary law. Therefore, although the clause enforcing freedom of religion in his draft constitution did not give voice to the depth of Jefferson’s concerns on the matter, it would have provided a substantially stronger guarantee that the citizens of Virginia could practice whatever faith agreed with their sensibilities than the later, much-lauded statute. Perhaps because the former was not adopted – the document it was a part of having arrived too late – the Sage of Monticello sought to intervene with the latter.

Then again, perhaps it was not just a matter of poor timing. As mentioned previously, Jefferson’s draft constitution for Virginia did find its way into the hands of the state’s provisional government in time enough to at least be considered alongside the favored, and ultimately adopted, proposal put forward by George Mason. Certain elements of Jefferson’s version were even adopted and integrated into the final draft, though the substance of it was put aside. While a comparison of the two documents in question – Jefferson’s and Mason’s proposed constitutions – reveal in many aspects strikingly different visions as to how Virginia should have been governed, certain similarities would seem also to corroborate a more than coincidental relationship between the two. That being said, the difference between their respective approaches to the aforementioned concept of freedom of religion provides a potentially enlightening insight into Jefferson perspective on established religion and that of Virginia’s political mainstream. Mason’s draft tellingly began with a sixteen-article declaration of rights, intended to provide a clear indication of the limits of the government it was prepared to outline. The last of these explicit articles stated, in full,

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Clearly Jefferson was not alone among the Founding Generation in his dedication to the formal recognition of religious freedom. Indeed, it is a testament to the liberality of the American Revolution and it supporters that the political elite who supported the draft which contained this provision were willing to do so at a time when religious establishments were not only the global norm, but formed the only religious context they themselves had ever known.

    There was, however, an important different between what Mason’s draft and Jefferson’s draft respectively promised. As the excerpt above indicates, Mason intended the state of Virginia to recognize the right of all its citizens to exercise whatever religion they pleased. This certainly represented a change from what had come before, and no doubt would have brought an end to any lingering persecution of evangelical Christian congregations. What Mason’s provision did not accomplish, however, and which Jefferson’s did, was the constitutional prohibition of state-funded religious institutions. No one, Jefferson’s draft made explicit, in addition to being forced to practice any faith to which they do not subscribe, “Shall be […] compelled to frequent or maintain any religious institution.” This was another matter altogether from the state simply recognizing freedom of conscience, bound up as it was with taxation and accordant concerns with public accountability. Mason and his supporters in Virginia’s revolutionary government may have been willing to recognize that government no longer had any place shaping the religious sensibilities of the citizens it intended to serve. But at the same time they were evidently reluctant – perhaps owing to the stabilizing effect they believed it could provide or the institutions of higher education it still controlled – to entirely disestablish the Anglican Church in Virginia. Jefferson was, and the fact that the clause of his draft constitution which would have accomplished the same was not adopted when Mason’s was being finalized is a probable indication that the Sage of Monticello’s perspective on organized religion and its relationship to the state was too radical in 1776 for even the revolutionary mainstream to accept.