Individual Rights & Popular Sovereignty
What is the relationship between individual rights and popular sovereignty? Was Jefferson's primary commitment to liberty (i.e., individual rights), or was it to democracy in the form of self-government (popular sovereignty)? In other words, was the purpose in founding the new nation to establish liberty and to employ democracy for that end, thus making self-government secondary and subordinate? Or was it to establish democracy primarily, with the expectation that liberty would be the result? Or do none of those options accurately describe the situation?
Stating the premise of this essay up-front, I would say that the relationship between individual rights and popular sovereignty is not one of the subordination of one to the other. Rather, I view popular sovereignty as an INTRINSIC PART of liberty, and neither is in any way secondary or subordinate to the other. Liberty at the personal level itself MEANS self-government by the individual. And beginning with that right of personal self-government, liberty is extended on a society-wide basis beyond mere personal rights to the self-government of the whole society, which is the true meaning of popular sovereignty or democracy.
Self-government, including both individual self-government and national self-government, is itself a natural right, and is one aspect of liberty, not merely a secondary means to liberty. It is an indispensable part of freedom and a necessary antecedent to "unobstructed action according to our will," limited only by the equal rights of others, as all liberty rightly is. This was the way it was defined by Jefferson.
"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others." --Thomas Jefferson to Isaac H. Tiffany, 1819.
There can be no stable individual liberty unless individuals have oversight and control of the government under which they live. The fact that some individual rights can be granted by a benevolent authority (such as was the case in Hong Kong before its people were handed over to the Chinese communists) only demonstrates that to separate self-government and popular sovereignty from the more personal rights that compose liberty ultimately means liberty denied. Jefferson identifies self-government at all levels as a natural right:
"Every man, and every body of men on earth, possesses the right of self-government... This, like all other natural rights, may be abridged or modified in its exercise by their own consent, or by the law of those who depute them, if they meet in the right of others." --Thomas Jefferson: Opinion on Residence Bill, 1790. ME 3:60
A written constitution may quite properly be called a secondary means to liberty, as is a republican form of government. These things are mechanisms devised to permit, facilitate and encourage the exercise of natural rights, but they are not of themselves natural rights. Popular sovereignty, however, is a natural right because each individual in a free society possesses the right of self-governance, and, as Jefferson pointed out:
"What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals." --Thomas Jefferson to James Madison, 1789. ME 7:455
Thus, if each member of society possesses the right of self-government, then society as a whole can and does possess the same right. Popular sovereignty is a means for securing our other rights, of course, and it is the best means for protecting them.
"The mass of the citizens is the safest depository of their own rights." --Thomas Jefferson to John Taylor, 1816.
"The people...are the only sure reliance for the preservation of our liberty." --Thomas Jefferson to James Madison, 1787.
But because popular sovereignty is also a means for securing our other rights does not make it somehow secondary, any more than the fact that free speech protects our other rights makes it somehow secondary to those other rights. As Jefferson wrote:
"The liberty of speaking and writing guards our other liberties." -- Thomas Jefferson: Reply to Address, 1808.
But the liberty of speaking and writing is itself an aspect of freedom, besides guarding our other liberties.
Sovereignty and Control
Popular sovereignty -- self-government, democracy -- means that the people can make sure that the government stays on the right track.
"No government can continue good, but under the control of the people." --Thomas Jefferson to John Adams, 1819.
But more than just keeping government on the right track, it also means that government is subject to the will of the people.
"A representative government [is] a government in which the will of the people will be an effective ingredient." --Thomas Jefferson to Benjamin Austin, 1816. ME 14:388
To separate "individual rights" from those rights related to collective self-government is to alienate the individual from his society, to arbitrarily restrict the scope of liberty, and to obstruct the individual's control over the life of his society. To differentiate liberty from popular sovereignty distorts and diminishes both. The government in a free society is not something apart from the citizen; under American self-government, the citizen is himself a part of the government, and Jefferson identifies republican government as one in which "every member composing it," has a voice:
"A government is republican in proportion as every member composing it has his equal voice in the direction of its concerns." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:33
This participation is not an "all or none" kind of thing, but is one that is measured by degrees. Even at the beginning, our government did not measure up to Jefferson's ideal of self-government:
"The full experiment of a government democratical but representative was and is still reserved for us. The idea... has been carried by us more or less into all our legislative and executive departments; but it has not yet by any of us been pushed into all the ramifications of the system, so far as to leave no authority existing not responsible to the people; whose rights, however, to the exercise and fruits of their own industry can never be protected against the selfishness of rulers not subject to their control at short periods... My most earnest wish is to see the republican element of popular control pushed to the maximum of its practicable exercise. I shall then believe that our government may be pure and perpetual." --Thomas Jefferson to Isaac H. Tiffany, 1816.
Notice that it is the participation of the citizens in self-government to the MAXIMUM practical extent that will keep our government pure. Otherwise other forces will seize governmental control and the citizen's rights cannot be protected. As part of his program for citizen participation, Jefferson proposed dividing the counties into wards, and he suggested that:
"When there shall not be a man in the State who will not be a member of some one of its councils, great or small, he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte." --Thomas Jefferson to Joseph C. Cabell, 1816. ME 14:422
Notice that Jefferson speaks of "his power." The fullest exercise of popular sovereignty is not a matter of theory and philosophy, but of power. By placing power in the hands of the people for whose rights and lives we are concerned, popular control becomes the ultimate protection for individual liberties and for republican government.
Liberty and Government
Certainly, it can be said that, Jefferson's main thrust was to establish liberty, not a form of government, democratic or otherwise. The individual was not to be subservient to the state, but rather the state subservient to the people.
"To inform the minds of the people, and to follow their will, is the chief duty of those placed at their head." --Thomas Jefferson to C. W. F. Dumas, 1787. Papers, 12:360.
Popular sovereignty gives individuals jurisdiction, so to speak, over the whole society.
Keeping a government "good" and on the right track could be interpreted as meaning nothing more than protecting the rights of its people. But a government doing the WILL of its people goes beyond merely protecting individual rights, just as the actions of an individual exercising self-government goes beyond any specific list of rights. This is the whole idea of representative government. Representatives do more than say, "I will preserve and protect your rights." They also say, "I will pursue certain policies which are agreeable to you," and it is in this way that the government is effectively shaped by the will of its people.
"A representative government [is] a government in which the will of the people will be an effective ingredient." --Thomas Jefferson to Benjamin Austin, 1816. ME 14:388
Given Jefferson's wish to see "the republican element of popular control pushed to the maximum of its practicable exercise," it is obvious he had in mind something more than merely protecting personal rights. Restricting liberty, however, is apparently what those who seek to limit liberty to personal rights end up doing without, perhaps, fully realizing it. Through an arbitrary limitation on the meaning of liberty, the individual's personal rights may be recognized, but his connections (rights, duties, obligations) to the society, and to the society's government under which he must exercise those rights, is converted from a cooperation and a union to an antagonism. Government is no longer his agent, but his enemy. He then asks not that government respond to the control of his will, but that it leave him alone and only perform the function of allowing him to enjoy his individual (i.e., personal) rights in his aloneness and with a minimum of interference. This kind of individualized liberty could only lead to the loss of liberty, not its enhancement, since it in fact diminishes liberty with respect to the individual's control over government and, consequently, his own life. It also prevents him from acting in concert with other citizens for tasks requiring the cooperative effort of everyone.
Liberty & Ideology
In contrast to European writers, such as Locke and Burlamaqui, Jefferson both purifies the definition of liberty (reducing it to its essentials) and makes it a foundation for relations with other members of society. "In the whole plenitude of its extent, it is unobstructed action according to our will" defines liberty in its fullest, most basic, unadorned, non-ideological, universal sense. "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others" simply and deftly describes individual liberty in the context of a society of other free individuals.
Rightful liberty means free individuals governing their own actions with a respectful acknowledgment of other free individuals doing the same. Does it include people acting together for their "common good"? Well, obviously it could include such actions if the participants so choose; if it did not, their will and action would be obstructed by some arbitrary rule and would not be liberty at all. If the individuals in a society do not have the power and right to define the conditions under which they live in a collective sense, the very meaning of both individual freedom and popular sovereignty is arbitrarily limited. Freedom is no longer a real condition, defined by the participants within natural and equal laws and relationships, but it is a condition limited by some outside authority who defines the actions and the relationships that shall be allowed. Where, then, is the freedom? Where is the sovereignty? Where is the ultimate and unfettered control of government? That kind of popular sovereignty is in name only, and is itself controlled by some higher ideological authority, hence it is not sovereignty at all.
What is the purpose of such a limited, self-contradictory "popular sovereignty"? It functions only where allowed, not where it itself chooses. This necessarily affects the government that is controlled by this so-called "popular sovereignty," and since sovereignty does not function freely, government itself is affected by the theoretical limitations. The resulting "popular sovereignty" then becomes merely a means for extracting from an outside, incompletely controlled agency (i.e., a government of which the people have only a limited ultimate control) the respect for the rights that have been so defined and specified. Thus, we become enmeshed in a mass of contradictions. Popular sovereignty no longer really means sovereignty. Government is defined by some philosophical dogma, not by the will of the people. And from whom comes this dogma? Who is the philosopher who places limits on popular sovereignty? Not the sovereign, but some theoretician. Separating self-governance from the panoply of Individual Rights can only end up reducing the individual to an adherent of some ideological faith, not making him a free and independently functioning human being who creates through self-governance the dynamics of his own life and his own society. It can only mean some kind of ideological bondage, not freedom in its broadest sense.
When using the first sections of the Declaration of Independence to define the role of government and the individual, it is important to recognize that those elements are part of a progressive argument for national independence. "Life, liberty, and the pursuit of happiness" are the basic elements of the life of free men as individuals. The purpose of government is to secure, to establish and to protect the conditions under which these rights will flourish. In other words, the purpose of government is to promote the freedom and happiness of the people who live under it.
"The equal rights of man, and the happiness of every individual, are now acknowledged to be the only legitimate objects of government." --Thomas Jefferson to A. Coray, 1823.
This thought is repeated by Jefferson on numerous occasions. Presumably, if Jefferson meant to say that the equal rights of man are the only legitimate object of government, he could have done so. But his conception of government was much broader than that.
Following the statement of the three inalienable rights --life, liberty, and the pursuit of happiness -- stated as a group describing the life of individual man, is the assertion that governments derive "their just powers from the consent of the governed," thus establishing yet another right enjoyed equally by all men, but this time in union with their fellow men. Then beyond this is yet another right, this time of the people collectively: "if any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it." And the final right in this chain is, that they can "institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." Notice that this new government was not to be limited to the protection of property, as Locke stated at several different points in his Treatise, such as the following:
"The reason why men enter into society is the preservation of their property." --John Locke: Second Treatise, sect. 222.
Locke's argument was based on observation and experience with a society that was struggling to move away from absolute monarchy. His habits of mind were formed under such conditions, even though he was certainly of a progressive mind for his time. But the American Founding Fathers, although greatly influenced by Locke's ideas, took them even further and carried the concept of freedom to a height never conceived before.
Surely, it is distorting things to interpret these statements in the Declaration to mean that the sole purpose of government is to protect individuals in their personal rights, and to limit self-governance (popular sovereignty) as a part of those rights. Such an idea would never have been contemplated by the Founding Fathers, since they saw themselves acting together for their mutual benefit, and saw their liberty as including self-government and self-determination, both as individuals and as a people. It was their inalienable personal rights that describe the meaning of existence on this earth as it relates to the individual in society. And it is that meaning, resting on the rights of individuals, that makes popular sovereignty imperative, i.e., that supplies the raison d'etre of government itself. These basic connections in turn require that the powers of government be derived from the consent of the people. They and their lives lived freely is the purpose of government. This, then, is the progression of the argument for independence: from inalienable rights, then to consensual government, then to the right to "alter of abolish," and then to the right "to institute new government" of their own design.
The whole point of the Revolution was to acquire self-government, and the point of the Declaration was the justification of self-government. Thus, the whole point of this reference to inalienable rights in the Declaration was to support the American people's determination to exercise self-government personally and as a nation, because it is self-evident that individuals that possess such rights also necessarily possess the right to govern themselves; hence, for those foundational reasons, and for the causes listed thereafter, their governmental units "are, and of right ought to be, free and independent states." That was the goal aimed at, the connection pursued through a long list of stated points, and the conclusion reached. Disconnecting individual rights and popular sovereignty breaks the chain of the argument and robs it of its sense. If there were no necessary connection between all those stated ends, the possession of individual rights would not give the people the right to overthrow despotic government.
Improving on Locke
Jefferson read and absorbed all kinds of writings, whether Locke, Montesquieu, Sydney or others, but in authoring the Declaration, he combined all of that with his sense of the sentiments of the American people and created a document that both amalgamated all those views and lifted them to their ultimate expression. This statement did not necessarily coincide with those other writers, but it raised the argument a step higher than those previous writers had taken it. This was unquestionably what happened in Jefferson's use of "pursuit of happiness" instead of Locke's "property": philosophically speaking, the pursuit of happiness is a much broader, more inclusive and meaningful term than merely property. Property refers to possessions, whereas the pursuit of happiness refers to all the elements of life. It represented a much broader concept of an essential right than Locke's more specific, limited, concept. It was Jefferson not only taking the argument to a higher level than Locke had taken it, but making it a transcending statement of human right and existence.
It is well to remember that Locke's Second Treatise on Government was philosophical speculation. The Founding Fathers, on the other hand, were involved in a practical application of the concepts of inalienable rights and freedom, to the formation of an actual, in-the-flesh government. And although Jefferson was obviously influenced by Locke -- indeed, many of the phrases in the Declaration are lifted almost word for word from the Treatise -- the Founders were not just slavishly following Locke's pronouncements. In fact, Locke's theories were a somewhat primitive precursor to the fundamental statements of inalienable rights contained in the Declaration.
Locke's Treatise contains barely a hint to support the people's continuing and intimate involvement in their own government. He refers to proper government as having no policies "founded on anything but the consent of the people," but he also notes that "they have given up their political power to the legislative." But these general sentiments contrast sharply with Jefferson, who wrote:
"A government by representatives elected by the people at short periods was our object, and our maxim at that day was, 'where annual election ends, tyranny begins;' nor have our departures from it been sanctioned by the happiness of their effects." --Thomas Jefferson to Samuel Adams, 1800. ME 10:153
Representatives elected for short terms gave the people a much greater control over their government. And, of course, Jefferson, especially in his later years, spoke constantly of the necessity of the people being involved in their government to the greatest extent which their competency would permit. These ideas were absent from Locke, who always recognized a great separation between the people and their government. Jefferson, on the other hand, defined republicanism in terms of its embodiment of the will of the people.
"The mother principle [is] that 'governments are republican only in proportion as they embody the will of their people, and execute it.'" --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:33
Jefferson's concepts on inalienable rights and popular sovereignty used Locke as a foundation, but these concepts evolved far beyond Locke to create what we now recognize as American self-government. Just as Jefferson moved beyond the more primitive right to property, to the pursuit of happiness, he also moved beyond just popular consent to popular self-government, and from only choosing representatives to actual participation at whatever levels practicable.
Therefore, the theories of these other writers might be considered supplementary to Jefferson's thought, might help us to better understand Jefferson because they represent a background and a starting point. But they should not be used to put limits on the meaning of Jefferson's ideas, and especially not if Jefferson's ideas diverge from those others, which they apparently often did, since Jefferson reached higher and further than they.
Most earlier European writers on these subjects assumed that national sovereignty had always been vested in a monarch, and liberty was a matter of extracting from the sovereign certain rights which belong to individuals (a la the Magna Carta, etc.) But Jefferson did not agree with that view. In fact, he wrote:
"There is an error into which most of the speculators on government have fallen, and which the well-known state of society of our Indians ought, before now, to have corrected. In their hypothesis of the origin of government, they suppose it to have commenced in the patriarchal or monarchical form. Our Indians are evidently in that state of nature which has passed the association of a single family... The Cherokees, the only tribe I know to be contemplating the establishment of regular laws, magistrates, and government, propose a government of representatives, elected from every town. But of all things, they least think of subjecting themselves to the will of one man." -- Thomas Jefferson to Francis W. Gilmer, 1816. ME 15:25
This gives an added dimension to the famous quote,
"A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate." --Thomas Jefferson: Rights of British America, 1774. Papers, 1:134 ME 1:209.
A free, self-governing people are themselves the ultimate sovereign. Their sovereignty is itself one of their inherent and inalienable rights, and not merely a means to extract from the national sovereign their other more personal rights. Indeed, their sovereignty defines a higher level of their relationship to government -- a step beyond mere personal rights. No doubt, Jefferson agreed with most other speculators on government about basic individual rights, but he identified something which those other writers generally did not recognize, or did not recognize to the extent which Jefferson did. This was something the "foreign speculators" were not likely to do, since they viewed the monarch as the sovereign, and their natural rights as a natural claim against that monarch.
Jefferson's brand of popular sovereignty was not fully supported nor pursued to all its ramifications by the other Founding Fathers, including even his protege Madison. But it is safe to say that in its general sense, Jefferson's view has, and still does, characterize the spirit of American democracy. It is what distinguishes our democracy from all others. In many ways, moreover, it is a practical reality even if it may not be fully recognized in theory. It is part of the American character, part of the dynamism of every facet of American society. American capitalism, for example, rests solidly on self-governance at the level of business enterprise.
Jefferson's Contribution to Rights Theory
Locke and others speak of government by consent of the people, but the right of the people to self-government, and of a government in which "every man feels himself a part" was not a part of their theory. Under their rudimentary conception of a free state, the primary purpose was to preserve the rights of property. In such a civil society, men give up the sovereign control they had as a natural right, and transfer this power to the state. Sovereignty remained ultimately in the people, but the chief magistrate and the legislative body acted as the agents of the people, to whom their powers were transferred and remained, provided they adhered to the just ends of government aforenamed.
None of this was contradicted or denied by Thomas Jefferson and our Founding Fathers. Indeed, it is basic, fundamental theory for the establishment of just government. Jefferson and the Founders, however, took this fundamental theory, and built and enlarged upon it in their creation of the American government.
There were those then and now who did not move beyond Locke's rudimentary concepts of rights, however. Their concept is of a separation between the government on one hand and the individual with his inalienable rights on the other. Moreover, the 19th century "liberal tradition" that took up where the Enlightenment left off expanded on the European speculator's viewpoint, not on Jefferson's. Their governments and their conception of rights arose historically as something rescued from absolute monarchs, and further development of the theory of liberty was built upon this dichotomy: the rights of the individual on one hand, and the necessity of government on the other. And this progressively alienated view continued along that path, resulting in a multitude of various "liberal" ideologies from Karl Marx to Ayn Rand, all of which have in common a call for a government that promises to do nice things for the citizens (runs a dictatorship on their behalf [Marx], or limits itself to respecting their personal rights [Rand]) but invariably excludes their will and their participation from the oversight and real control of the government itself. That is to say, unlike Jefferson, who wanted to extend the control exercised by the people to the greatest extent practicable, later liberalism turned away from the idea of empowering a free people, and saw its role as giving directions to the citizens based on whatever its particular ideology suggested. Thus, it became Jefferson's empowerment of the people versus later liberalism's ideological theories. Under the later liberals, liberty is restricted to an ideology (a theory), and is not an open venue pursued by the people, on which they move wherever their will takes them. The people, indeed, under these brands of liberalism are in bondage to the tyranny of an ideology, for as Karl Popper wrote,
"Any society organized around a blueprint is inherently totalitarian."
The society of a free people is organized so as to empower them to draw their own blueprints. There are risks in having such a free society, but freedom always includes the freedom to fail. Later liberalism sought to eliminate those risks by installing rigid "liberal" dogma. Instead, they undermined the fullest meaning of liberty itself.
Thus, there is no direct line between Jefferson and European liberalism, though there obviously are many points in common, especially concerning the personal, inalienable rights of the individual. Jefferson's focus went beyond just the personal right of the individual, and included popular participation in government, whereas later liberalism has focused on its own political ideas and political party.
Jefferson's Vision Today
American self-government never quite reached the vision that Jefferson had for it. But even in its partial achievement, it had, and continues to have, much of the spirit and characteristics that he inspired. Jefferson wanted to push participation to the ultimate. He wanted to divide the counties of each state into wards, and to have popular participation and control at every practicable level. This was his obsession later in life.
"As Cato, then concluded every speech with the words, 'Cathago delenda est,' so do I every opinion with the injunction, 'divide the counties into wards.'" --Thomas Jefferson to Joseph C. Cabell, 1816. ME 14:423
Just how far can the "full experiment of a government democratical but representative" be taken? Two centuries have added complications, but the principles that Jefferson outlined can still serve as a guide to better government. The problem is less with the difficulty of the principles, and more with the reluctance of those in opposition to relinquish control, "to leave no authority existing not responsible to the people," and "to see the republican element of popular control pushed to the maximum of its practicable exercise." That is the vision we must look to, however, if we wish "that our government may be pure and perpetual."
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