Jefferson Ascendant

© 1996 David G. Post. Permission granted to redistribute freely, in whole or in part,with this notice attached.

David G. Post


Visiting Associate Professor of Law, Georgetown University Law Center
and
Policy Fellow, Electronic Frontier Foundation


When Newt Gingrich's House of Representatives recently set up its first outpost on the Internet, it chose to name it "Thomas" in honor of Mr. Jefferson -- a small but telling symbol of the ascendancy of the "Jeffersonian vision" not only in the realm of politics, but in the realm of high technology as well.

Jefferson and Hamilton remain the two great pole stars in American politics, their feud surely the longest_running in American political history. The two men staked out opposing positions and battled over most of the great issues on which the fate of the infant Republic was seen to depend __ states' rights versus a strong national authority, agriculture versus manufacturing, legislative power versus executive power, free trade versus mercantilism, yeomanry versus the elite. Their intellectual descendants continue to do battle to this day.

To be sure, theirs was a debate about means, not ends: both men were deeply committed to the republican ideal, to the legitimacy of only those governments grounded upon the consent of the governed, and to the primacy of individual liberty in the constellation of natural rights. But they held fundamentally different views about the nature and the proper exercise of governmental power and the manner in which governmental power could best be brought to bear so as to secure that liberty.

For Jefferson, power was always a corrupting force, and concentrations of power were always to be avoided lest the Republic founder:

"What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate."

Diffusion and decentralization of power were the touchstones of the Jeffersonian philosophy. Jefferson was, in his own words, "not a friend to a very energetic government," finding it "always oppressive" in that it "places the governors indeed more at their ease, at the expense of the people." The government he sought, as he declared in his First Inaugural Address, was one "which shall restrain men from injuring one another [but] which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned." Because "men are disposed to live honestly, if the means of doing so are open to them," they required little direction from central authority to manage their affairs: "Were we directed from Washington when to sow, and when to reap, we should soon want bread," he observed, later adding, in a letter to his friend Gideon Granger, that "when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and we will become as venal and oppressive as the government from which we separated."

To Hamilton, this was all anarchy and riot, a "dance to the tune of liberty without law," put forth by "never to be satiated lovers of innovation and change." Power tends to corrupt, to be sure; but "the possibility of abuse is no argument against the thing,"and "too little power is as dangerous as too much."

"History is full of examples, where in contests for liberty, a jealousy of power has either defeated the attempts to recover or preserve it in the first instance, or has afterwards subverted it by clogging government with too great precautions for its felicity, or by leaving too wide a door for sedition and popular licentiousness. In a government framed for durable liberty, not less regard must be paid to giving the magistrate a proper degree of authority, to make and execute the laws with rigor, than to guarding against encroachments upon the rights of the community. As too much power leads to despotism, too little leads to anarchy, and both eventually to the ruin of the people. . . . "

Against the Jeffersonian position that the best government was the least government, Hamilton counterpoised a strong central government controlled by an executive officer commanding broad powers, an efficient government which "through the medium of stable laws, shelters and protects, the life, the reputation, the prosperity, the civil and religious rights of every member of the community."

It is hardly surprising that Jefferson has been adopted as the patron saint of the new Republican congressional majority, which invokes his spirit at every turn, but it might come as something of a shock to Jefferson himself, the great defender of the agrarian way of life, that his vision has taken root in the new technological wonderland of "cyberspace."

The decentralizing effect of information technology is one of the truly startling developments of the late 20th century. As Peter Huber observes in his book "Orwell's Revenge," Orwell got all the details right in 1984 but erred with the fundamental premise: that technology would inevitably concentrate power in the hands of the few and lead to an expansion of mechanisms of centralized, totalitarian control. Circumstances surrounding the downfall of the Soviet Union alerted us all to the alternative possibility that the widespread availability of everything from telephones, fax machines, and CNN broadcasts might make it more, not less, difficult for the State to maintain its control over information and the levers of centralized control.

And the emergence of the global Internet further illustrates, and will accelerate, this trend. On the Internet there is no centralized control of any kind, no governing authority that can impose its own vision of the good on the colonists of the new territory. Information roams freely, literally at the speed of light; because no one owns or operates this network, which anyone with a computer and access to a telephone line can hook into, no one has the power to set uniform rules of conduct.

Washington is only now discovering just how difficult imposition of its rules on a decentralized network can be. The federal government's ill-fated "Clipper Chip" initiative is symptomatic. Concerned about the possibility that powerful encryption software would fall into the hands of terrorists or other malfeasants, allowing them to shield their communication from governmental eavesdroppers, the federal government proposed a requirement that all encryption software had to use a government-approved algorithm that would allow back-door law-enforcement entry. They were persuaded to withdraw the proposal by the outcry from the Internet community itself, and from businesses hoping to serve a growing international market, and, finally, by a recognition of the futility of trying to legislate in the usual heavy-handed fashion when thousands, and possibly hundreds of thousands, of copies of the offending programs have been distributed (and continue to be available) over the Internet.

And if, as many have suggested, cyberspace metaphorically resembles the Wild West -- a place where the inhabitants set (and enforce) their own rules in the face of an inefficacious central government __ well, we have a good idea how the Jeffersonians and Hamiltonians among us are likely to react, inasmuch as their two forebears already squared off on the question of settlement of the non_metaphorical Wild West, i.e. on expansion into the "Western" territories (of Kentucky, Ohio, etc.).

For his part, Hamilton despaired of the central government's ability to maintain control over settlements in the western territories

"The western region [is] not valuable to the United States for settlement. . . . Should our own citizens, more enterprising than wise [!], become desirous of settling this country, and emigrate thither, it must not only be attended with all the injuries of a too widely dispersed population, but by adding to the great weight of the western part of our territory, must hasten the dismemberment of a large portion of our country, or a dissolution of the Government."

Hamilton spoke from bitter personal experience; one of the great crises faced during his tenure as Secretary of the Treasury was the Whisky Rebellion, the refusal of settlers in the "western region" to pay the newly-imposed federal levy on distilled spirits, and Hamilton himself was forced to lead the militia into battle to ensure efficient projection of federal power as the westward expansion proceeded.

Jefferson, on the other hand, foresaw a flourishing "empire of liberty" on the western frontier, a place where the "utmost diffusion of power" could take root and where "new sources of renovation" would serve as a safety valve against the despotic tendencies of the national government, renewing the spirit of liberty "should its principles, at any time, degenerate in those portions of our country which gave them birth."

Surely, were Hamilton to log on today, he would indeed find the anarchy and "public licentiousness" he railed so frequently against -- a cacophonous international debate with a million voices on everything from copyright policy to scientology to the best ways to play Doom II, an unregulated and largely unregulatable collection of everything from the Federalist Papers to video clips of people having sex with animals. But the millions who continue to flock there are finding something that looks more like a place where Jefferson's fundamental democratic value -- "free communication among the people, which has ever been justly deemed the only effectual guardian of every other right" -- reigns without interference. The sage of Monticello, one suspects, is smiling broadly.


© 1996 David G. Post. Permission granted to redistribute freely, in whole or in part,with this notice attached.

Contact David Post by e-mail at Counsel Connect: david.post@counsel.com.


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