Jefferson on Constitutional Flexibility

Background and Context

By 1816, Thomas Jefferson had been out of the presidency for seven years, writing from Monticello on questions of governance he no longer had to answer for personally. That July, Samuel Kercheval, a Frederick County lawyer campaigning to modernize Virginia's underrepresentative 1776 state constitution, asked for his views; Jefferson's reply became a sweeping argument that each generation holds sovereign authority to remake its own laws. Three years later, in September 1819, a different alarm reached him: Spencer Roane, a Virginia judge and fellow Republican, sent Jefferson his newspaper essays attacking the Marshall Court's McCulloch v. Maryland ruling, which had just affirmed sweeping federal power and, in Jefferson's reading, the judiciary's claim to be the Constitution's sole and final interpreter. Read together, the two letters bracket Jefferson's abiding worry: a constitution can fail by being remade too easily, or by being treated as too holy to touch.

Interpretation

Jefferson is not contradicting himself across these two letters so much as triangulating a single problem from two directions. The wax image answers the question of who gets to say what the Constitution means. Its grammar matters: "on this hypothesis" is a conditional clause, not a flat verdict — Jefferson is describing what follows if the judiciary's Federalist-aligned defenders are right that courts alone possess final interpretive authority over the Constitution. Grant that premise, he argues, and the "supreme law" stops being law in any binding sense and becomes putty in one branch's hands, reshaped opinion by opinion, "twisted and shaped into any form they please." This is Jefferson's version of departmentalism — the position, which he shared with Madison in cooler moments and pushed further than Madison in heated ones, that each branch of government holds an equal and independent right to interpret the Constitution within its own sphere, rather than deferring automatically to judicial pronouncement. The image is deliberately unflattering: wax has no structural memory. No matter how solid the last impression looked, the next hand that holds it near a flame reshapes it completely, and nothing in the material itself resists.

The ark of the covenant image answers a different question: how should a founding generation's document sit across time? Jefferson's target here is not a branch of government but an attitude — the tendency, which he saw hardening around Virginia's unrevised colonial-era charter, to treat inherited law as sacred relic, its authority derived from age and origin rather than continuing consent. Ancestor-worship of law, in his framing, mistakes the dead for wiser stewards of the present than the living: "we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors," he writes a few lines past the excerpt filed here. This is the argument for which Jefferson is best remembered on the subject — his conviction, stated elsewhere in the same letter, that "the earth belongs to the living," and that binding a generation to laws it never chose is a quiet tyranny of the dead over the living, however well-intentioned the original authors were.

The two images share a structure worth naming plainly: both describe a Constitution that has stopped functioning as negotiated, revisable law and collapsed into something else instead — either a tool wielded by whoever currently holds interpretive power, or an object of worship immune to revision by anyone. Jefferson's own preferred position sits in the narrow space between: a constitution firm enough to bind, but amendable enough that no single generation, and no single branch, gets to freeze it in its own preferred shape, whether that shape is imposed by judicial reinterpretation or preserved by superstitious reverence. The two dangers are not symmetrical in his letters — he spends far more ink warning against ossification than against judicial overreach — but he treats them as the same species of failure: a founding document that has stopped answering to the people who currently live under it.

Current Relevance

The judiciary-as-final-arbiter question Jefferson raised against Roane never closed; it is, functionally, the ongoing argument between judicial supremacy and departmentalism that resurfaces every time a president, governor, or Congress publicly disputes a court's reasoning rather than simply complying with its result. The Supreme Court asserted its own version of judicial supremacy explicitly in Cooper v. Aaron (1958), declaring that its constitutional interpretations bind all other officials as the "supreme law of the land" in practice, not merely in the case before it — precisely the claim Jefferson thought corrosive. Legal scholars such as Larry Kramer, in The People Themselves (2004), have revived Jefferson's and Roane's departmentalist argument as a corrective to what they see as an overgrown judicial monopoly on constitutional meaning, while critics counter that the alternative — every branch free to act on its own reading — risks the instability Jefferson elsewhere warned against.

The reverence question has, if anything, intensified. Contemporary debates over constitutional originalism versus living constitutionalism are, at bottom, Jefferson's ark-of-the-covenant argument replayed in modern vocabulary: originalists warn that treating the Constitution as infinitely adaptable to present values empties it of binding force, while Jefferson-style living-constitutionalists warn that treating eighteenth-century text as permanently authoritative binds a diverse, changed nation to choices made by property-owning men who could not have anticipated it. Article V's near-impossible amendment threshold — the U.S. Constitution has been amended only twenty-seven times in over two centuries, twelve of those in its first fifteen years — gives Jefferson's ossification worry unusual teeth today: whatever generational consent might mean now, the practical mechanism for exercising it barely functions, which makes his 1816 warning about "sanctimonious reverence" read less like philosophy and more like an accurate prediction of institutional stasis.

The same reverence question shows up outside constitutional law wherever an institution treats a founding text as beyond revision: corporate charters, religious doctrine, even the informal "way we've always done it" governing a family business. Jefferson's framing gives that pattern a name and a diagnosis rather than leaving it as a vague complaint about tradition — the problem isn't age, it's the absence of any live mechanism for the current stakeholders to say, openly, that the terms no longer fit.

Impact and Legacy

Both letters entered the canon of American constitutional thought early and have stayed there. The Kercheval letter's "earth belongs to the living" argument is a fixture of law-school constitutional-theory courses and a direct ancestor of the modern living-constitution school; it is cited in judicial opinions and legal scholarship whenever a court or commentator wants historical cover for reading founding text against present circumstance. The Roane letter's "wax" line circulates more narrowly but no less pointedly — a favorite citation of judicial-restraint advocates across the political spectrum, invoked by critics of expansive judicial review on both the originalist right, wary of courts inventing rights, and the departmentalist left, wary of courts blocking reform — itself evidence of how cleanly Jefferson's image maps onto a general anxiety about unchecked interpretive power rather than any single partisan program. Encyclopedia Virginia and Monticello's own Jefferson Quotes and Family Letters project each maintain standalone entries devoted to parsing what the ark-of-the-covenant line does and doesn't claim, evidence of how often it circulates detached from the generational-sovereignty argument that actually anchors it. The two letters are regularly anthologized as a matched pair in collections of Jefferson's political writing and assigned alongside Madison's rebuttals — a rare case of Founder-era correspondence functioning less as settled doctrine than as a permanently open question textbooks preserve on purpose.

Contrasting Views or Controversies

Madison's answer to the Kercheval argument, developed most fully in an unpublished 1830s memorandum responding directly to "the earth belongs to the living," is the classic rebuttal: a society bound by nothing longer than one generation's lifespan cannot make credible long-term commitments — every contract, treaty, and property title would expire with its signers, and the resulting instability would cost the living far more than any inherited constraint. Madison also flagged a practical problem Jefferson's letter glosses over: generations do not turn over cleanly on a single date, so "the living" is never a single body that can vote as one; treating each cohort as a discrete political unit with an absolute veto is a tidier idea than a workable one.

A parallel objection applies to the wax image: Jefferson's departmentalism, taken to its logical end, means every branch acts on its own constitutional reading with no umpire able to bind the others — not obviously more stable than judicial supremacy, only differently unstable, replacing "wax in one branch's hands" with open conflict between three. Roane and Jefferson wrote from the losing side of a fight over federal power that mostly resolved the other way, and two centuries of relatively durable, judicially anchored constitutional practice is real evidence against their alarm, whatever its rhetorical force.

There is also a harder-edged consistency objection. Jefferson's suspicion of a strong, loosely construed federal government sits awkwardly beside his own presidency, in which he approved the Louisiana Purchase — arguably the single largest expansion of federal power and executive discretion in the nation's first half-century — over his own prior constitutional scruples, reasoning that necessity justified stretching the document past its letter. A critic can fairly ask whether Jefferson's wax-versus-relic framework was a settled philosophy or a set of arguments deployed selectively: embraced when it constrained rivals, set aside when it constrained him.

Practical Application

• Constitutional and legal scholars: use the paired letters as the clearest primary-source statement of the departmentalism-versus-judicial-supremacy debate, and as the historical root of the originalism/living-constitutionalism divide — both modern arguments trace almost word for word to these two letters.
• Civic educators: pair the Kercheval and Roane excerpts with Madison's rebuttals (Federalist No. 49 and his later "earth belongs to the living" memorandum) so students encounter both halves of a real, unresolved argument rather than a single settled answer.
• Organizational governance: apply the same diagnostic to any founding document smaller than a nation — bylaws, a partnership agreement, a family trust. Ask, on a fixed schedule, whether the current stewards treat it as a living tool the present membership can amend through its own stated process, or as an untouchable relic no one dares revisit even when it plainly no longer fits.
• Journalists and commentators: reach for "wax in the hands of the judiciary" precisely — as a description of unchecked, unaccountable reinterpretation — rather than as generic shorthand for "a court I disagree with," which dilutes the specific structural claim Jefferson was making about interpretive monopoly.
• Individuals: treat the underlying question — is this rule alive to the people currently bound by it, or ossified past anyone's ability to revisit it — as a durable check on any inherited commitment, from an old promise to an old policy, before assuming either that everything can be renegotiated at will or that nothing ever should be.
• Mediators and family-governance advisors: when a dispute traces back to an inherited agreement — a will, a founding partnership deal, a long-standing household rule — separate the two Jeffersonian failure modes explicitly: is one party quietly reinterpreting the terms to their own advantage (wax), or is the group refusing to revisit terms everyone privately knows no longer serve them (relic)? Naming which failure is in play changes what the fix looks like.

Background on the Author

Thomas Jefferson (1743–1826) wrote both letters from retirement at Monticello, seven and ten years respectively after leaving the presidency, at a point in his life when he had shifted from exercising federal power to worrying about its accumulation in other hands. His suspicion of judicial overreach was not abstract: it was sharpened by two decades of personal and political friction with his own second cousin, Chief Justice John Marshall, dating to Marbury v. Madison (1803) and hardened by McCulloch v. Maryland (1819), which Jefferson read as confirming his worst fears about a federal judiciary consolidating power under cover of "necessary and proper" reasoning. His generational-sovereignty argument to Kercheval likewise drew on lived frustration rather than pure theory — Virginia's 1776 constitution badly underrepresented the state's growing western counties, a malapportionment Jefferson had criticized for decades and that Kercheval's reform campaign was directly trying to fix. That combination — a former chief executive newly skeptical of concentrated power, and a longtime critic of his own state's frozen founding document — is what authorizes both letters' urgency: Jefferson was not speculating about what unaccountable interpretive power or ossified law might someday do, he was describing patterns he had watched unfold across four decades of public life.

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