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Hello and welcome to the Jefferson Madison Letters. I'm Charlie Jett coming to you from our studio in beautiful downtown Chicago. And one letter at a time, we're following the 50-year friendship that helped build a republic. It is March 15, 1789 in Paris. Thomas Jefferson is forty-five, in his fifth year in the city as America's minister to France, and the city around him is beginning to shake. Bread is scarce. The Etage Generaux meets in six weeks. No one can say where any of it is heading. On his desk sits Madison's skeptical letter, the parchment barriers letter. It took four months to cross. Jefferson notes he received it only on february twenty third and cannot even tell how. He never knew by what hand it came. Back home, everything the letter discussed is in motion. Madison, who turns thirty eight tomorrow, has come through a bruising election and holds a seat in the first Congress, a body that has convened on paper but cannot yet raise a quorum to do business. The question of amendments is rolling toward him. So Jefferson sits down to make his case to the one man positioned to act. And notice how he does it, not by dismissing Madison's doubts, but by honoring them, going through the objections one by one, like a lawyer answering a brief, conceding what is fair, and then adding the single argument Madison left out. He knows his words will take months to arrive. He cannot know whether they will reach New York before events outrun them, or whether anything written at this distance can still matter at all. So read it as it was written, a letter sent into the dark, its landing uncertain. A note before I read. What follows is an extract, the heart of the letter, Jefferson's reply on the Declaration of Rights. I'll read it nearly whole because every line earns its place. The second half, a tour of Europe's convulsions, I'll summarize afterwards. Every word quoted is Jefferson's verified against founders online. He opens by honoring his friend's argument, a model of how to disagree. He writes Your thoughts on the subject of the Declaration of Rights in the letter of october seventeenth I have weighed with great satisfaction. Some of them had not occurred to me before, but were acknowledged just in the moment they were presented to my mind. Then the master stroke, the argument Madison had missed, and watch how Jefferson refuses to argue from theory alone. He puts faces on it. He writes In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which puts it into the hands of the judiciary. This is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity. In fact, what degree of confidence would be too much for a body composed of such men as With, Blair, and Pendleton? There it is, the answer to parchment. A Bill of Rights is not merely a statement of ideals, it is a legal text, and it arms independent judges with a standard against which to measure the acts of government. And Jefferson names the judges George Wyt, John Blair, Edmund Pendleton, Virginians both men know and trust. Understand what a bet this is. In seventeen eighty nine, judicial review is mostly an argument. Few state courts have asserted it. Hamilton has sketched it in a Federalist number seventy eight, but it is not yet settled fact of American life, and the federal courts themselves do not yet exist. Jefferson is staking the whole case on a power the judges have barely begun to claim. Then he takes up Madison's four objections in order. To the second, that the essential rights could never be declared in their full latitude, he answers with plain bread. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. But it is the fourth answer where you hear the friendship working. Jefferson restates Madison's famous objection in Madison's own terms and concedes it flat in a single word. He writes Experience proves the inefficacy of a bill of rights. True. But though it is not absolutely efficacious under all circumstances, it is of great potency always and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. True, he gives Madison the point, parchment alone has failed, and then answers it with a builder's image. A declaration of rights is not the foundation, it is a brace, not sufficient by itself, but strengthening, and sometimes the difference between a building that stands and one's that falls. Then he weighs the two risks side by side. The inconveniences of having a declaration, he writes, are short lived, moderate, and reparable. The inconveniences of lacking one are permanent, afflicting, and irreparable. They are in constant progression from bad to worse. And then this, Jefferson, who has spent these letters worrying about kings meeting his friend halfway. He writes The executive in our governments is not the soul, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the more formidable dread at present, and will be for long years. That of the executive will come in its turn, but it will be at a remote period. You're right, he tells Madison, for now the danger runs through the legislatures where the majorities do their work. He keeps his old fear in reserve. The executive's turn will come, but he grants his friend the present. And the argument closes not on an image but hope. He writes I am much pleased with the prospect that a declaration of rights will be added. Now the rest of the letter is Europe on the boil, the King of England's madness, Prussia and the Turks, and France, where the Etage General gather in April. Jefferson surveys it all and delivers one of the most spectacularly wrong predictions in his life. France, he writes, will be quiet this year. It is seventeen eighty nine. The Bastille falls in July, and then at the very end the letter turns human. He asks Madison to send word the moment his home leave is granted, he is aching to come home, and hopes his friend, and I quote, will encamp with me at Monticello for a while. A letter arguing for the machinery of liberty, and it closes with two friends planning a camping trip. So what does Jefferson assume? He assumes that an independent judiciary will hold. His whole winning argument rests on it, a body which if rendered independent and kept strictly to their own department. In seventeen eighty nine that is a wager, not a fact. Congress will not create the federal courts until the fall, and judicial review lives in pamphlets and a scattering of state cases, not in settled practice. Notice how he shores up the wager, not with theory but with names, with Blair, Pendleton, men whose integrity both correspondents have watched for decades. The confidence is personal before it is institutional. We inherited the institution. They had to start from the men. So what does Jefferson fear? Two things on two clocks. The near fear is erosion. Weigh his language. The cost of having a declaration is short lived, moderate, and repairable. But the cost of lacking one is permanent, afflicting, and irreparable, in constant progression from bad to worse. That is the voice of a man who fears not a single catastrophe, but the slow, quiet loss of rights nobody wrote down. And the far fear is the one he refuses to surrender even while conceding the present. The executive's tyranny will come in its turn, but it will be at a remote period. He grants Madison today and files a warning for tomorrow. So what do they take for granted that we no longer do? We have lived our whole lives with the Bill of Rights as bedrock. It feels inevitable, eternal. This exchange is the proof that it wasn't. Two of the most brilliant founders genuinely disagreed about whether to have one, argued about it across an ocean at four months a letter, and arrived at a conclusion that could have gone otherwise. The first ten amendments were not handed down on tablets. They were reasoned into existence by people who weren't sure. This is worth remembering every time they are invoked as if they fell from the sky. So what's missing? A calendar the letter can survive. The one thing Jefferson cannot control is time. His January letter took four months to reach Madison, and at that pace this one lands in New York in the middle of summer. The work will not wait for it. On june eighth, bound by the pledges of his campaign, Madison rises in the House of Representatives and introduces the amendments, quite possibly before his friend's letter ever arrived. So did the letter matter? Listen to Madison on the floor that day, arguing for the Bill of Rights he once doubted. If these rights are written into the Constitution, he says independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights. They will be an impenetrable bulwark against every assumption of power in the legislative or executive. That is Jefferson's argument, the legal check in the hands of the judiciary, standing in the congressional record, in the mouth of the man this letter was written to persuade. Whether the letter outran the speech or the two friends simply arrived at the same door from opposite shores, the idea they refined between them is now on the floor of Congress. What is missing when Jefferson seals this letter, proof that any of it will matter, is supplied within twelve weeks. Now this is what these two friends did better than anyone of their age. They thought together, on paper, across an ocean, until an idea was strong enough to last. Jefferson conceded what was true, kept what was essential, and added what was missing. The Bill of Rights is many things, but it is also a letter between friends finished, sent, and spoken aloud on the floor of Congress. Well, that's our sixth letter, and it closes the long argument over the Bill of Rights. Mason's fatal objection became Jefferson's principle, became Madison's doubt, and became in the end the first ten amendments to the Constitution. Six letters, one idea reasoned into being. Next time we turn a corner. With the new government finding its feet, Jefferson sends Madison the boldest idea in all of their correspondence that the earth belongs to the living, and no generation has the right to bind the next. It's a different kind of letter, and the start of a different kind of a conversation. Thomas Jefferson's letter to James Madison, dated March 15, 1789, in the Papers of Thomas Jefferson, volume 14. You can read every word for yourself. I want you to stay informed, stay engaged, and stay curious.