The University of Chicago Law School Faculty Blog

Student Blogger - Thomas Jefferson: notes on the revolutionary as a practicing lawyer.

Thomas Jefferson is one of the most widely written-about American revolutionaries, and the fact that Jefferson spent his early years working as a lawyer has not escaped the attention of American historians. Other historians covering the subject have viewed Jefferson’s years as a practicing lawyer with not-so-subtle derision. The typical explanation of Jefferson’s years as a lawyer is usually bookended with an apologia along the lines of: “The glamor of his political career and his prodigious versatility in many fields of intellectual endeavor overshadow his achievements in the prosaic realm of law.” Edward Dumbauld, Thomas Jefferson and the Law (Norman, 1977). In comparison to Jefferson’s later achievements, Jefferson’s years as a trusts-and-estates lawyer for the Virginia elite seem of little interest.

But with new sources comes new understanding. The important new sources that Professor Konig has uncovered are Jefferson’s legal commonplace books. The commonplace book was a kind of highly formalized notebook for law students in the eighteenth century. Jefferson’s commonplace book had previously been published in an attenuated form, but Professor Konig has returned to the original source material with the keen eye of the legal historian. What Professor Konig found in Jefferson’s commonplace books clashes with our prior understanding of Jefferson as a humdrum country lawyer. In Jefferson’s extensive collection of case notes, Professor Konig sees the contours of a legal mind profoundly interested in questions regarding human rights and liberties. Professor Konig contrasts Jefferson’s commonplace book with that of future Chief Justice John Marshall. Although George Wythe trained both men, their respective commonplace books are a contrast in styles. Marhsall’s book was straightforward and focused on the essential matters he would need to master in order to work as a practicing lawyer. Jefferson, by comparison, often delved into caselaw surrounding the development of English civil liberties—a subject of tenuous connection to his future legal practice—and frequently injected his own thoughts and ideas into his notes.

Jefferson’s notes display an intellectual curiosity that belies the understanding of Jefferson as the simple country lawyer. Jefferson was particularly taken with the jurisprudence of Lord Chief Justice John Holt and Sir Edward Coke. Jefferson went to unusual lengths to track down and take notes on Holt’s opinions. Jefferson went so far as to even collect dissenting opinions written by Holt and Coke. That Jefferson obtained dissenting opinions is significant—Jefferson wasn’t just interested in learning the law, he was engaging in an intellectual discourse with the famed jurists. Professor Konig argues that this shows the operation of a mind striving to understand fundamental notions regarding the proper relationship between individuals and government.

The object of Jefferson’s attention is revealing of Jefferson’s views in more specific detail. Professor Konig explains that Jefferson was thoroughly Eighteenth Century in his “whiggish” views regarding opposition to a strong monarch and support for individual liberties. This can be seen in Jefferson’s fascination with Holt, who aimed to make the judiciary in England a bulwark against the concentration of power in the hands of either the Crown or Parliament. Jefferson’s interest in Holt shows that Jefferson the lawyer may have supported the establishment of a strong judiciary. All of this stands in distinction to the views of Jefferson the President, who went so far as to write in 1804 that “the opinion which gives to the judges the right to decide what laws and constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres would make the judiciary a despotic branch.” Letter to Mrs. Adams (Sept 11,1804).

Compared to the view of Jefferson as the simple country lawyer, the Jefferson that emerges in Konig’s paper is a complex rights theorist interested in the kinds of ideas that propelled the nation through revolution and constitution writing. The image of Jefferson that emerges from Professor Konig’s research is the man of letters, deeply engaged with and interested in the history and development of civil liberties in England. A man willing to go to great lengths in order to track down sources to shed meaning on the proper relationship between the individual and government. Given Jefferson’s later political and intellectual achievements, it isn’t terribly surprising that Jefferson the law student was highly motivated and intellectually engaged. While the work Professor Konig presented is only a small portion of a larger project that is stil in progress, Konig’s Jefferson stands in contrast to the Jefferson depicted by historians such as Leonard Levy and Bernard Bailyn. Levy’s Jefferson is a doctrinaire thinker, more concerned with political orthodoxy and censorship than open questioning and inquiry. Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side (Cambridge 1963). Similarly, Bernard Bailyn’s Jefferson is a “stereotype … a configuration of liberal attitudes and ideas which he accepted uncritically, embellishing them with his beautifully wrought prose but questioning little and adding little.” Bernard Bailyn, Faces of Revolution: Personalities and Themes in the Struggle for American Independence 27 (Knopf 1970).

Perhaps more than any other revolutionary, Jefferson is a symbol for America and for Americans. Jefferson’s shifting fortunes in the realm of popular opinion represent a strand of American self-reflection that is revealing of our national self-image. Jefferson reflects our hopes and fears about who we are in a visceral way. Of the various founding characters for which we name our public institutions, only the use of Jefferson’s name can inspire heated debate and controversy even today. See School to Vote on Renaming Jefferson Elementary: President’s Slave Holding Perturb Families, Teachers. This symbolism and controversy is precisely what makes Professor Konig’s new research exciting and utterly relevant. The debate over Jefferson rages on, and Professor Konig’s work will no doubt be an important contribution to our understanding of the man and the myth.

DOJ Abandons Defense of the 'Defense of Marriage Act': First Thoughts

The Obama administration's announcement today that it will no longer defend the constitutionality of a key provision of the Defense of Marriage Act is a dramatic and completely game-changing legal decision. It is also the right one. 

Five states and the District of Columbia currently license same-sex marriages, and more will follow. New York and Maryland recognize such marriages from their sister states, even though they do not yet perform them.  Yet DOMA forbids the federal government from recognizing these marriages. This discrimination affects same-sex couples on matters ranging from tax-filing status to a same-sex spouse's eligibility for burial in a federally funded veteran's cemetery. The Government Accountability Office has documented "1,138 federal statutory provisions . . . in which marital status is a factor in determining or receiving benefits, rights, and privileges."

The lynchpin of today's announcement was the Justice Department's conclusion that government discrimination against gays and lesbians requires heightened scrutiny under the Equal Protection Clause (whose principles apply to the federal government through the Fifth Amendment's Due Process Clause). Courts grant a presumption of constitutionality to most laws and review them under only "rational basis" scrutiny. But the DOJ concluded that classifications based on sexual orientation are inherently suspect. Following established caselaw, the DOJ examined factors for heightened scrutiny and concluded that it should apply here, for four reasons: 1) there is "a significant history of purposeful discrimination against gay and lesbian people"; 2) "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable"; 3) gays and lesbians have "limited political power" to protect their interests through the majoritarian political process; and 4) "there is a growing acknowledgment that sexual orientation 'bears no relation to ability to perform or contribute to society.'"  This analysis potentially has implications not just for marriage, but for all government discrimination against gays and lesbians.

Under equal protection principles, laws are not constitutional or unconstitutional in some absolute sense. When a court applies heightened scrutiny, the government is required to advance "important" reasons for keeping the discrimination in place. If the court accepts the reasons, the law is constitutional; if the reasons are insubstantial, grounded in animus or stereotypes, or only weakly connected to some important government objective, the law fails.  

There is a strong, sound tradition of the executive branch defending acts of Congress, even when the administration in power disagrees with them. But it is completely unedifying to see the government's lawyers advance so-called "important" reasons for a law when those reasons are in fact outdated, illogical, hypothesized, or invented post hoc in response to litigation. This is what happened in the case last year where a federal judge struck down the military's Don't Ask, Don't Tell policy.  The judge pointedly noted that it was unavailing and disingenuous for the government to argue that the law advanced "important" interests at the same time that the President and the Chairman of the Joint Chiefs of Staff were publicly asserting just the opposite.

After initially defending DOMA in various ongoing lawsuits, the DOJ has decided it will not engage in this sort of flawed legal argumentation. It is admitting that no important reasons exist for the federal government to refuse to recognize the perfectly valid marriages of same-sex couples from Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and our nation’s capital. For the purposes of its own laws, the federal government has always followed the determination of a state as to whether a person was legally married. It should be no different for same-sex couples.

To argue the contrary, the DOJ would have had to rely on DOMA's 15-year-old legislative history. The 1996 House committee report on DOMA is a remarkable period piece, full of homophobic rhetoric dressed up as public policy arguments that no serious national politician could get away with today. It decries an "orchestrated legal assault being waged against traditional heterosexual marriage," and asserts that Congress must respond by standing up for "traditional notions of morality." Or, as the DOJ puts it more delicately, "the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships--precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against." The DOJ commendably decided it "cannot defend [DOMA] by advancing hypothetical rationales, independent of the legislative record."

The DOJ's decision is principled, and its legal explanation is well-reasoned.  Today's announcement is the beginning, not the end, of a fascinating new chapter in the legal and political debate over same-sex marriage. 

Steve Sanders