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Author: Rob Natelson

Second in a Series: The Message of the Farmer Letters

Second in a Series: The Message of the Farmer Letters

This is the second of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

The Farmer letters are best understood when read in conjunction with Dickinson’s 1764 speech and his 1774 Essay on the Constitutional Power of Great-Britain Over the Colonies in America. The latter tract elaborated The Farmer’s comments about government. This discussion, although drawing principally on The Farmer, will mention all three works.

In political philosophy, Dickinson was essentially a Lockean. Government was founded on contract. It was a public trust erected to further human happiness. Necessary to human happiness was satisfaction of man’s social instinct. Any particular government was constitutional and legitimate only so far as its actions furthered human happiness. In his 1764 speech, Dickinson argued that the “liberties” (e.g., privileges) created by English law are “[f]ounded on the acknowledged rights of human nature.” In other words, the “rights of Englishmen” were positive law manifestations of natural rights.

According to Dickinson, immigrants to the colonies had effectively contracted to recognize the executive authority of the Crown and its authority over foreign affairs. Furthermore, by accepting Britain as the mother country and the moderator of the empire, colonists had impliedly agreed that Parliament could regulate trade with foreign nations and among units of the empire.

But Americans had never ceded their right to be taxed only by their consent, given individually or by their representatives: “We cannot be happy without being free,” Dickinson wrote in Farmer Letter XII. “We cannot be free without being secure in our own property … We cannot be secure in our property, if, without our consent, others may take it away.”

Parliament, where Americans were unrepresented, had imposed the Townshend duties to raise revenue rather than to restrict or regulate trade. As such, they were taxes: “A ‘TAX’ means an imposition to raise money,” Letter IV proclaimed. The Quartering Act, by which Parliament ordered colonial governments to provide lodging and other reports to British troops, also was substantially a tax.

Although the “Farmer” necessarily focused on taxes, he addressed other political questions as well. One was how a free people should respond to governmental usurpation. Citizens should oppose small usurpations immediately to prevent them from acquiring the force of precedent. Letter XII proclaimed, “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep.”

However, opposition should proceed cautiously. Letter III contended that citizens must first petition for redress of grievances. Only if petitioning was unsuccessful should citizens proceed to peaceful civil disobedience. Only if both those steps failed, should they employ force.

Dickinson did not believe taxation was the only subject within the exclusive sphere of colonial control. Dickinson cited the court system as another example. Letter XII asserted, “The freedom of a people consists in being governed by laws, in which no alteration can be made, without their consent.” Obviously, this proclamation is not limited to taxes.

In his 1774 essay, Dickinson illustrated by example what he meant by “internal governance.” It included regulation of civil justice, criminal law, manufacturing, religion, the press, and many other activities. His list looks very much like the lists the Constitution’s advocates offered during the ratification debates when they itemized the powers the Constitution reserved exclusively to the states.

Like Dickinson’s later writings, The Farmer revealed an interest in the incentives motivating political officeholders. Letter VII observed that measures not affecting parliamentary constituents directly received less attention in the House of Commons than those of importance to constituents. Parliamentary taxation of the colonies in particular created bad incentives. Letter VIII cited as a principle of good government the maxim, Qui sentit commodum, sentire debet et onus: Who gets the benefit should bear the burden.

The “Farmer” supported his case heavily, both in the text and in footnotes. There were citations to the Bible, to political tracts, to leading classical authors, and to works of ancient and modern history. For example, to illustrate how the true incidence of a tax might fall on a person other than the nominal payer, Letter VII related an episode from the reign of the emperor Nero, drawn from the writings of the Roman historian Tacitus.

Incidentally, constitutional originalists may appreciate Dickinson’s preference for relying for on older records as legal authority rather than on recent trends or events. His 1774 essay asserted that it is best to resort to “those ‘dead but most faithful counsellors’ (as Sir Edward Coke calls them) ‘who cannot be daunted by fear, nor muzzled by affection, reward, or hope of preferment, and therefore may safely be believed.’ . . . ” This statement should be read in conjunction with Dickinson’s reason for adhering to the rule of law: “[M]iserable is the servitude when the laws are uncertain.”

First In A Series: John Dickinson Comes Into Prominence

First In A Series: John Dickinson Comes Into Prominence

This is the first of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

This year marks the 250th anniversary of one of the most influential series of writings in American history. The series was John Dickinson’s Letters from a Farmer in Pennsylvania. The “letters” were twelve newspaper essays, the first of which was published in November, 1767.

In accordance with the contemporaneous understanding of freedom of the press, Dickinson chose to remain anonymous: He signed the letters “A Farmer.” The letters argued that Parliament’s Townshend duties were improper and unconstitutional, and explained how Americans should resist them.

The Farmer took America by storm. The essays were widely reprinted individually, and they were collected as a book. There were editions in Britain and Europe. When Dickinson’s true identity emerged, he became the second most famous American in the world, after Benjamin Franklin.

This is the first of five postings on the life and thought of John Dickinson. In addition to examining The Farmer and other writings, these postings summarize how the author’s views affected the drafting and ratification of the U.S. Constitution.

John Dickinson was born in Maryland on November 8, 1732 to Samuel and Mary Cadwalader Dickinson. His father was a prosperous planter of tobacco, and later of wheat. In 1740 the family moved to Delaware, occupying a home near Dover. His parents valued learning and provided John and his few surviving siblings with an excellent classical education.

By 1750, John decided he wanted to be a lawyer, and that year he began clerking with the leading attorney in Philadelphia. In 1754, his parents sent him to London’s Middle Temple, where he studied for another three years. His correspondence with his parents from England still survives, displaying mature commentary on daily life and English political developments.

Thus, Dickinson received many advantages. But in London he encountered a severe obstacle: poor health. Even as a young man, he seems to be been subject to infection, and this remained true throughout his life. After age 40, he also suffered from gout.

In 1757, he was admitted to the bar at the Middle Temple and returned to America. Success in his Philadelphia law practice was rapid. Besides being bright and diligent, he seems to have had a magnetic presence. He was the kind of man people wanted to be around and wanted to entrust with their affairs.

Much of his Dickinson’s practice centered on private rather than public law: decedents’ estates, land claims, and most likely trusts. As was true of other founders, the rules prevailing in private law—particularly the rules binding fiduciaries—influenced Dickinson’s attitudes toward public law.

In those days Pennsylvania and Delaware were tied in harness (they had a common governor), so a young man of promise could aspire to a political career in both states. Before John was 27, he won a seat in the Delaware colonial assembly. He was re-elected the following year, and thereupon his colleagues in the assembly elected him Speaker. In 1762, he won a special election to fill a vacancy in the Pennsylvania house of assembly. He was re-elected in 1763 and 1764.

While serving in the Pennsylvania assembly he faced a political crisis. Dickinson had frequently been critical of the colony’s propriety charter with the Penn family. However, when Joseph Galloway and Benjamin Franklin—two of the colony’s most powerful figures—proposed to petition the king to convert it into a royal charter, Dickinson was skeptical. A royal charter, he believed, would leave Pennsylvania unprotected if the British government ever became oppressive.

On May 24, 1764 Dickinson rose in the assembly to deliver an elaborate speech in opposition to the petition. A written version of this oration survives. It was extraordinary for its careful balancing of the risks and rewards attributable to alternative courses of conduct. It was extraordinary also for use of what Dickinson’s beloved Roman authors called sententiae—sound bites. Among them:

*          “Power is like the ocean; not easily admitting limits to be fixed in it.”

*          “It will be much easier for me to bear the unmerited reflections of a mistaken zeal, than the just reproaches of a guilty mind.”

*          “A good man ought to serve his country, even tho’ she resents his services.”

The speech identified the charter change as a constitutional alteration requiring special procedures to adopt. Dickinson maintained that a legislature elected under one constitution has no power to create another one. A new constitution required the “almost universal consent of the people.”

Although Dickinson overwhelmingly lost the Assembly vote, he was soon vindicated. The passage of the Stamp Act the following year demonstrated the correctness of his prediction that the British government might prove more oppressive than the Penn family. The charter change request died quietly.

In 1765, Pennsylvania sent Dickinson to the Stamp Act Congress in New York. His fellow commissioners (delegates) selected him to author the Congress’s chief pronouncement, the “Declaration of the Rights and Grievances of the Colonists.” Although Parliament soon repealed the Stamp Act, two years later Parliament replaced it with the Townshend Acts. That action provoked the Farmer letters.

Removing ‘Faithless’ Presidential Electors Is Unconstitutional

Removing ‘Faithless’ Presidential Electors Is Unconstitutional

This article originally appeared in the Daily Caller.

A 2016 Colorado Democratic presidential elector who pledged to vote for Hillary Clinton is suing because the state removed him from his position after he voted for Ohio Gov. John Kasich instead. He joins two other electors with somewhat similar claims.

The three electors argue the Constitution bans states from dictating how they vote. They are represented by Lawrence Lessig, a Harvard law professor of wide interests and abilities.

According to the original meaning of the Constitution, Lessig and his three clients are correct. Article II, Section 1, Clause 2 and the 12th Amendment—which together govern presidential elections—grant electors, not the states, authority to vote for president and vice president. Colorado’s effort to punish them for voting “wrong” is unconstitutional.

Article II, Section 1, Clause 2 provides, “Each state shall appoint [Electors], in such Manner as the Legislature thereof may direct …” Note that the appointment is by the state itself rather than by any branch of the state.

How the appointment is carried out (“in such Manner”) is determined by the state legislature. The record from the Founding era tells us that in this instance, “legislature” means the state’s general lawmaking apparatus, including the governor’s bill-signing function. The Constitution assigns some responsibilities to state legislatures acting alone, but fixing the manner of appointing presidential electors is not among them.

In other words, aside from the Constitution’s grant to Congress of power to fix a uniform presidential election day, the “Manner” by which a state appoints presidential electors is prescribed by state election laws. All states have passed laws authorizing the people of the state to vote for electors directly. (It’s worth mentioning that, for reasons too complicated to discuss here, a 1934 Supreme Court decision holding that Congress also has broad power over presidential elections was erroneous.)

What does this “manner of appointment” include? May a state impose pledges on candidates for elector? May a state punish those who break their pledges? May it remove an elector who votes the “wrong” way and substitute another who votes “right?”

Although the Supreme Court has upheld pledges, I doubt whether the Constitution authorizes states to do any of these things. A great deal of Founding-era evidence tells us that in this context “Manner” includes only the basic mechanics of selection: registration lists, voting districts, necessary margin of victory, and the like. The evidence does not suggest that “Manner” of selection encompasses how a successful candidate acts after selection.

Several facts reinforce this conclusion. First, the 12th Amendment provides, “The Electors shall … vote by ballot for President and Vice-President …” Electors vote—not a state puppet master. As the Supreme Court has recognized in cases involving constitutional amendments, when the Constitution grants a function to a convention or legislature, it means the convention or legislature, not some outside coercing agency.

If the Constitution allowed state authorities to dictate their state’s presidential votes, then why did it require the states to appoint flesh-and-blood electors?

Electors are to vote “by ballot.” In Founding-era language, that means secret ballot. But a state’s preferences generally will be public information. If the electors have nothing to decide, then why did the Constitution require a secret ballot?

As if all this were not enough, the Founders were explicit: Once chosen, presidential electors make their own decisions. In Federalist No. 67, for example, Alexander Hamilton wrote of the Electoral College:

[T]he immediate election should be made by men most capable of analyzing the qualities adapted to the [president’s] station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

Of course, a candidate running for presidential elector has every right to tell the voters how he or she expects to cast his or her ballot. But for better or worse the Constitution does not authorize the state to punish an elector if, in the exercise of discretion, he decides to change his mind.

Rights for a River? An Effort to Undermine Democracy and Make the Law Unfair

Rights for a River? An Effort to Undermine Democracy and Make the Law Unfair

This article originally appeared in the Colorado Springs Gazette.

An environmental organization is asking a court to grant a river status as a “person” with the rights of personhood, thereby launching an attack on judicial fairness, the rule of law, and democracy.

The group is Deep Green Resistance, and it argues the Colorado River should have rights of its own. On what reasonable basis Deep Green purports to know better than others what the river needs is anyone’s guess. How a judge would know better what the river needs than local users, lawmakers, and residents is another mystery. But observe this significant fact: The river has not actually filed the suit. Deep Green is doing the legal work.

Deep Green Resistance has to do the work because rivers can’t prosecute lawsuits. Nor can animals, trees, or other entities for which pressure groups sometimes claim “rights.” So what’s really behind such suits? The unstated goal is to change the balance of power among humans—and to undermine democracy and the rule of law.

Suppose I convince a court to grant “rights” to the entity known as “the U.S. economy.” The “rights” I convince the court to adopt include the right to prosper, grow, and flourish. Thereafter, a dispute arises over whether a tract of land should be developed. A developer representing the owner wants to put up a factory. A neighborhood organization claims the tract is a valuable wetland and, under state law, should be preserved.

In the ensuing lawsuit, each side has certain claims and privileges under existing law. But if the prospective developer can introduce “the economy” into the lawsuit along with its “rights to prosper, grow and flourish,” then the developer has the neighbors at an unfair disadvantage from the start. All through the lawsuit, the neighbors will have to fight uphill.

With the sides flipped, that’s what Deep Green wants to do: create a crooked system in which its opponents are always at an unfair disadvantage.

Aside from its unfairness, there are two other negative effects that would be caused by granting “rights” to non-humans.

First, skewing the courts to favor some people and disfavor others undermines public respect for the judiciary. People understand the courts are supposed to administer “equal justice under law,” and they look at them suspiciously when the courts act unfairly. Right now, the courts don’t need any more bad press; the public is already skeptical about judges because so many have ventured into policy making.

Second, granting “rights” to non-humans replaces democracy with oligarchy. When judges define the scope of an object’s “rights,” they are effectively making legislative policy. Legislators are democratically elected to make policy, but judges are not. Judges are chosen to administer the law, and they usually are either appointed or chosen in ways that severely restrict voter choices.

A good example of what not to do arises from the state of Montana. Although that state’s courts have not created “rights” for things, they have used vague and undefined “rights” in the state constitution to engineer a massive policy making transfer from the democratically elected branches of government to themselves. As a result, much policy is made by a judicial oligarchy rather than by elected officials.

Bottom line: Seeking “rights” for non-humans is an authoritarian ploy to undercut democracy and the rule of law. The court should toss Deep Green’s complaint. And it should assess costs against the group for bringing a frivolous lawsuit. If the court does not do so, Congress and state legislatures should move quickly with corrective legislation.

Why Removing Historical Monuments is a Bad Idea

Why Removing Historical Monuments is a Bad Idea

This article originally appeared in The Hill.

While most Americans watch helplessly, our stateside Taliban vandalizes and removes long-standing public monuments. As some commentators point out, this destruction weakens our consciousness of history, including history’s darker side.

Even more importantly, however, erasing monuments of once-revered figures upsets an unspoken, but long-prevailing, consensus governing our decisions of whom to commemorate.  The consensus renders the commemoration process more meaningful and less political than it otherwise would be.

The standard traditionally applied is as follows: When deciding whom to commemorate—by statues, place names, monuments, holidays, currency, or coins—we select individuals who performed extraordinary feats that, on balance, made the world a better place. We disregard or discount those faults common to the individual’s time and place. We do not erect monuments to people who performed extraordinary feats that were unquestionably evil, even if their characters included some virtuous traits. Thus, George Washington is memorialized in statues and place names, although he held slaves. Adolph Hitler gets none, although he was kind to dogs.

George Washington is one example of the traditional standard in action. Other examples are the decisions to name towns in New York State, Illinois, and Indiana after the Roman consul, Marcus Tullius Cicero. Cicero was a great orator, an outstanding lawyer, a spokesman for balanced government, and the single person most responsible for transmitting the Greek philosophical tradition to Western Europe. It does not disqualify him that he selected a husband for his daughter rather than allowing her to select one for herself. Parental selection of spouses is anathema today, but in Cicero’s society, “everybody did it.”

Stupendous vision, energy, competence, and courage distinguished Christopher Columbus from others of his generation. His explorations united a world previously divided by hemispheres. His disreputable actions reflected attitudes and practices common to his society. Thus, we honor Columbus by monuments, place names, and a federal holiday.

Our domestic Taliban has made Robert E. Lee a target, allegedly because he held slaves and fought for his home state rather than the nation. But so did tens of thousands of others similarly situated. Lee was distinguished from his contemporaries by an exemplary career, both in the U.S. and Confederate armies, of competence and honor. In later years, Lee also distinguished himself as an educator: As president of the institution that is now Washington and Lee University, he was largely responsible for fashioning the modern college honor code.

There are at least two reasons for not permitting contemporaneous vices to disqualify historical figures from favorable commemoration.  First, virtually everyone acts in ways consistent with contemporaneous social norms—norms of which later generations may disapprove. Common faults are, by definition, common. If we disqualified all figures because we now reject their society’s practices, we would commemorate few people indeed, and we would deprive ourselves of many sources of inspiration.

Second, because almost everyone conforms in most respects to prevailing social practices, disqualification for such conduct is necessarily arbitrary and driven more by politics than by merit. The fact that a particular vice prevailed in a person’s place and time becomes an excuse for stripping recognition from people whose lives contradict the propaganda of those in power. Today “progressives” vandalize statues of Columbus and Lee, allegedly because of actions motivated by racism. Tomorrow a “white nationalist” majority may uproot monuments to Martin Luther King, allegedly because of his adulteries and other indiscretions. Or a religiously-conservative majority may blacklist outstanding women who in private life opted for legal abortions.

Admittedly, the traditional consensus is not an infallible guide to deciding whom to commemorate. For one thing, it can be a close question whether a person’s extraordinary feats made the world a better place: Franklin D. Roosevelt is widely commemorated, even though scholars still argue over whether his leadership during the Great Depression actually improved American life. Politics plays a role in answering close questions.

In some cases, moreover, politics induces decision makers to ignore the traditional standards. It is hard to explain on other than political grounds why so many more monuments and places are dedicated to John F. Kennedy than to much better presidents.

But the traditional standard does help minimize political manipulation of history. Perhaps that is precisely why the standard is flouted by those who want to politicize everything.