Tag Archives: Constitution

Swat the nose of that camel before it is too late!

You know my doubts or rather convictions about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expence, & to the greatest abuses …
… I well remember the opposition, on this very ground, to the first act for building a lighthouse. the utility of the thing has sanctioned the infraction. but if on that infraction we build a 2d. on that 2d. a 3d &c. any one of the powers in the constitution may be made to comprehend every power of government.
To Albert Gallatin, October 13, 1802

Patrick Lee’s Explanation
Realistic leaders recognize a power grab when they see one.
In 1789, early in his first administration, President Washington signed a bill authorizing lighthouses, piers, buoys and beacons. Federally funded lighthouses were built on the coast. New legislation proposed building piers. Jefferson, Secretary of State in the first instance and now President in the second, opposed both efforts as not authorized by the Constitution.

He recognized the value of a lighthouse and suggested its “utility,” as he phrased it, was the justification for going beyond the Constitution. But if Congress can exceed the Constitution once, even for a worthwhile purpose, then it’s simpler to do it again, and even simpler a third time. The result would be a Constitution stretched to justify whatever government wanted to do. The Constitution, created to limit the national government’s authority, would come to mean nothing. Abuse of power and “bottomless expense” would be the natural results.

Jefferson’s position was always to amend the Constitution to provide necessary authority rather than do an end run around it, with questionable justification.

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Individual enterprise is smarter than government!

I have recieved the specimens of straw-plaiting which you were so kind as to inclose & …the possibility that you may establish the manufacture in some of the states. but the distribution of powers by our general [US] & state constitutions has placed in the general government no authority to embark in or to encourage … state governments can do it; but they generally leave them to individual enterprize, trusting that the sagacity of private interest will generally discover those pursuits which may be entered on to advantage.
To George White, August 18, 1805

Patrick Lee’s Explanation
Smart leaders know who knows best.
White’s wife had perfected a process for braiding straw that in turn would be used to make straw hats. That product was imported from England, and White asked the President’s patronage for establishing an American manufacture. White thought it could pay its own way once operational.

Jefferson declined any help because the U.S. Constitution made no provision for it. Always a proponent for American made goods, he deferred to state action. Even so, states usually deferred to private individuals. Why? Because the wise businessman was far better able to determine economic feasibility than any government ever could.

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You are barking up the wrong tree.

Th: Jefferson … acknoleges … [your letters] proposing that persons should be employed by the general government to explore mines of metal & coal, to assay ores … designate canals, roads &c but observes to him that these objects not being among the powers transferred by the States to the General government, nor among the purposes for which the latter is authorized to levy money on the people, the State governments alone are competent to the pursuits proposed.
To Benjamin Henfrey, January 5, 1802

Patrick Lee’s Explanation
Constitutional leaders understand the limits of their authority.
The British scientist and businessman had written Jefferson at length recommending the hiring of a geologist/engineer to study mineral ores and design roads and canals in the various states. He also introduced a teaser, volunteering the demonstrate for the President a process of his own, capturing gas vapor from coal and using it to provide lamp lighting.

Henfrey then offered his own services for hire, to do what he proposed.

Jefferson the scientist would have loved the new information Henfrey’s proposal might provide. No doubt he was intrigued by gas lighting. Still, he shut Henfrey down cold. Why?
1. Such exploration was not a power given by the states to the national government.
2. Nor was it one of the purposes for which the government could tax its citizens.
The Constitution clearly left that authority and expense to the individual states.

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How much chain to give the junk yard dog?

And here again was lost another precious occasion of sparing to France the crimes and cruelties thro’ which she has since passed …The king was now become a passive machine in the hands of the National assembly … and had he been left to himself, he would have willingly acquiesced in whatever they should devise as best for the nation. A wise constitution would have been formed, hereditary in his line, himself placed at it’s head, with powers so large as to enable him to do all the good of his station, and so limited as to restrain him from it’s abuse.
Autobiography, 1821

Patrick Lee’s Explanation
A constitution should both empower and restrain.
The French were grappling with the scope of a new government. The king was willing to accept great changes. The result could have been a hereditary constitutional monarchy.

Jefferson would have welcomed such a government, though he despised monarchies, and especially hereditary ones. Why? Because gaining half a loaf was better than no loaf at all.

That constitution might have done what all constitutions should do, regardless of the form of government created. They should grant enough authority to government leaders to enable them to do good, while limiting that authority to prevent abuse.

The reason the French failed to accomplish this might surprise you. It will be the subject of the next post.

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Is being honest all that is needed in a judge?

It is not enough that honest men are appointed judges. All know the influence of [special] interest [s] on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that “it is the office of a good judge to enlarge his jurisdiction,” and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear.
Autobiography, 1821

Patrick Lee’s Explanation
Even honest leaders must be held accountable.
Jefferson continued his thoughts on federal judges who held a lifetime appointment:
1. Even honest judges could be led astray, without knowing it, as special interests influenced them.
2. By their very nature of setting precedent in their rulings, judges sought to expand their authority. Since they were federal judges, any expansion would be of national power.
3. If federal judges were not answerable to anyone, how can they rightly judge issues between the national government, which gave them the office of judge, and a state, which gave them nothing?

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Are judges answerable to anyone?

But there was another amendment of which none of us thought at the time and in the omission of which lurks the germ that is to destroy … our judges are effectually independent of the nation. But this ought not to be … I deem it indispensable to the continuance of this government that they should be submitted to some practical & impartial controul: and that this, to be imparted, must be compounded of a mixture of state and federal authorities …
Autobiography, 1821

Patrick Lee’s Explanation
All leaders should be held accountable by others.
The draft of the Constitution provided that federal judges would serve “during good behavior.” Without a working definition of good behavior and an effective way to enforce it, judges could serve for life. Jefferson opposed anyone holding any office for life, but this escaped him at the time, as it did others. This Autobiography was written 30+ years later. In hindsight only did he see the error, judges who could act with impunity.
He wrote of English judges who answered only to the King. That was too much control from the executive. Removal by a simple majority of the legislative bodies put too much control in lawmakers’ hands. Yet, when judges exceeded their authority, were abusive, became ill or drunkards, there was no reasonable way to remove them.
Jefferson didn’t propose a solution beyond suggesting that the standards for removing a judge should be established by “a mixture of state and federal authorities.” That implies a broad-based consensus, where strong state and national support favored such drastic action.
Jefferson saw a practical danger in a completely independent judiciary, which we’ll pursue in subsequent posts.

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It is good, but it is not enough.

This [Constitutional] Convention met at Philadelphia on the 25th. of May ’87. It sate with closed doors and kept all it’s proceedings secret, until it’s dissolution on the 17th. of September, when the results of their labors were published all together. I received a copy early in November, and read and contemplated it’s provisions with great satisfaction … The absence of express declarations ensuring freedom of religion, freedom of the press, freedom of the person under the uninterrupted protection of the Habeas corpus, & trial by jury in civil as well as in criminal cases excited my jealousy; and the re-eligibility of the President for life, I quite disapproved.
Autobiography, 1821

Patrick Lee’s Explanation
Leaders protect individuals from institutions.
The new Constitution was drafted while Jefferson was in France. His input was indirect only, through resource materials he sent to James Madison. He received a draft copy a few weeks after the Convention adjourned and was generally pleased with the result.

There were two things that he did not like at all:
1. There were no guarantees of individual rights. (What we know as the Bill of Rights, the first 10 amendments, were not part of the original draft.)
2. The President could be re-elected indefinitely. He saw the roots of a President-for-life, as in some form of a king.

Even at this early stage, he promoted limitations on government power and guarantees of individual liberties.

(Two speaking engagements, a 5 day trip to meet a new GRANDson in NC plus transitioning to a new computer all took their toll on the Leadership Blog. Mr. Jefferson’s assistant is now back in the swing of things, maybe.)
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Why is it good to bind men in chains?

The observations are but too just which are made in your friendly address on the origin & progress of those abuses of public confidence & power which have so often terminated in a suppression of the rights of the people, & the mere aggrandizement [made to appear greater] & emolument [enriching] of their oppressors. taught by these truths and aware of the tendency of power to degenerate into abuse, the worthies of our own Country have secured its independence by the establishment of a Constitution & form of Government for our nation calculated to prevent as well as to correct abuse.
To the Washington City Tammany Society*, March 2, 18o9

Patrick Lee’s Explanation
Honest leaders seek limitations to their authority.
This wordy and complicated excerpt, written two days before Jefferson left the Presidency, contains important observations about men and government:

1. Too much confidence in government officials leads to
– Too much power in their hands
– Their thinking more highly of themselves than they should
– Enriching themselves at public expense
– A suppression of the rights of the people

2. This “tendency of power to degenerate into abuse” inspired “the worthies of our own Country” (the founding fathers) to establish a government upon a Constitution.
– A Constitution is a “super law,” a law above all other laws, drafted by an assembly called for that purpose alone and adopted by considerably more than a mere majority of the states.
– Its purpose is to both prevent and correct abuses of power.

The post title is drawn from Jefferson’s draft of the Kentucky Resolutions, 1798. The answer to the question is because men cannot be trusted.

*Tammany Societies had their roots in early Pennsylvania and Delaware Chief Tammany. Originally, they envisioned a merging of European and American Indian cultures into a new and better one. The interesting letter from the Society to Jefferson was “styled” as if it were written by native Americans.

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Cool discussion or shed blood?

Happy for us, that when we find our constitutions defective and insufficient to secure the happiness of our people, we can assemble with all the coolness of philosophers and set it to rights, while every other nation on earth must have recourse to arms to amend or to restore their constitutions.
To C. W. F. Dumas, September 10, 1787

Patrick Lee’s Explanation
Wise leaders provide for peaceful change.
Jefferson was not referring to the U.S. Constitution, because it was adopted after this date, on September 17, 1787. Nor was he referring to the Articles of Confederation, which the Constitution replaced. Instead, he was most likely affirming an American mindset to resort to deliberation rather than weapons to solve internal debates about governance.

Implied in the word “constitution” was that it was a “super law,” above other laws. Constitutions were not adopted by a simple majority or by bodies meeting in their regular assemblies. Nor could they be amended in that fashion. Constitutional amendments required super majorities from special assembles, often created for that purpose.


A constitution could be amended to meet changing circumstances, but that change would not happen easily or quickly. A protracted amending process was a protection, requiring a broad consensus among the citizenry. Even so, it was far better than bloodshed.

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Who said you could do THAT?

I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly and without the aid of sophism [Webster’s 7th New Collegiate: “an argument correct in form or appearance but actually invalid; esp: one used to deceive”] for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the laws of nations.
To James Madison, December 20, 1787

Patrick Lee’s Explanation
Empowering leaders said you could do that.
222 years ago yesterday, December 15, 1791, Congress adopted the first 10 amendments to the U.S. Constitution, known as the Bill of Rights. Those rights were not included in the original document.
Jefferson had received a draft of the new Constitution in Paris where he was serving as America’s ambassador to France. In this letter, he first listed all of the things he did like. Then he listed what he did not like. First among those, was the absence of a bill of rights, guarantees of personal liberties.
Some thought a bill of rights unnecessary, since the states guaranteed rights for their own citizens. Others thought them unnecessary because they were natural rights, which government couldn’t infringe upon. Not good enough, said Jefferson. He thought those rights should be mandated from the national level. Almost four years after writing this letter, they were.
These were rights granted by the national government and were not state rights. It would not be until the Civil War and after that all the protections of the U. S. Constitution overruled any state provisions to the contrary. And it wouldn’t be until the civil rights era and the 1960s until those rights were interpreted to protect all Americans, not just white ones.

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