Recap: “Thomas Jefferson: A Life of Learning, and a Life in the Law,” with Washington University’s David Konig

Though he’s frequently credited with being its first utterer, Jefferson did not, in fact, introduce “that government is best which governs least” into the public (and, following that, the bumper sticker) lexicon. What he actually said, in a 1788 letter to William Stephens Smith, was far more poetic and nuanced: “we are now vibrating between too much & too little government, & the pendulum will rest finally in the middle.” Within this misattribution resides at least one common shortcoming in our contemporary approach to understanding Jefferson’s legacy, Washington University’s David Konig noted in opening his August 23 talk at the Kinder Institute. In our rush to definitively characterize Jefferson—whether that be as a revered and quotable states’ rights advocate or as an inconsistent hypocrite—we often oversimplify, losing sight not only of the complexity of his mind but also of how and why this complexity makes any rigorous analysis of Jefferson, and particularly an analysis of Jefferson vis-à-vis his having enslaved men, women, and children, a fraught but also an important exercise.

We might recover some of this complexity without glossing over the enduring questions that it raises, Prof. Konig went on to show, if we view Jefferson through the lens of his sparsely examined years reading and practicing law. The law might seem an awkward fit for a figure as speculative and as literary in style as Jefferson was. But if we look at the ideas he meticulously curated in his legal common-place book, an edition of which Prof. Konig just edited, we see that Jefferson perceived his time in the courts as an opportunity to apply and refine the moral philosophy he had begun to develop while at William & Mary as a student of Scottish Enlightenment devotees George Wythe and William Small—a philosophy, Prof. Konig explained, that was defined by a belief in humans’ natural sociability and a subsequent encouragement of reciprocal relationships built around the transcendent notion of equality that is central to natural law philosophy.

When it came to practicing law, applying this philosophy meant a jurisprudential gravitation toward equity as a concept that could be deployed to bring about justice when the rigidity of the common law failed to. The direction in which this “forensic compass” led Jefferson was perhaps most evident in the cases he argued regarding slavery. For example, two years before the decision in Somerset v. Stewart, Jefferson essentially made its same case, challenging settled imperial norms with his holding that the British common law did not support chattel slavery—specifically, that property rights in labor did not, under the common law, sanction property in personhood—and that a slave elsewhere was by right free upon re-entering England. Further demonstrating how the natural law tradition shaped his jurisprudence, Jefferson would later argue that the punishment in Virginia for miscegenation (indentured servitude) was not transferable from parent to child and that to suggest otherwise would be a violation of a natural right to move freely through the world that all men enjoyed by virtue of their being born into it.

Of course, these legal arguments in some respect only return us to the actions that contradict them. Jefferson practiced chattel slavery. He subscribed to a hierarchical moral order that did not acknowledge African Americans as part of the state and thus did not make room for their free movement through it. Still, Prof. Konig concluded, even if it does not resolve the contradictions we see between Jefferson’s life and his writings, considering his legal career nonetheless enriches our sense of the complicated figure inhabiting these contradictions and the times in which he lived.