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Author: Rob Natelson

The most ‘underrated’ founder’s influence on America’s Constitution

The most ‘underrated’ founder’s influence on America’s Constitution

This article first appeared in The Hill.

This month marks the 250th anniversary of John Dickinson’s Letters from a Farmer in Pennsylvania — the landmark series of newspaper op-eds that laid out the colonial case against taxation without representation.

The letters were widely republished and made Dickinson for a time the most famous American in the world, second only to Ben Franklin.

The Farmer Letters should not, however, overshadow Dickinson’s immediate impact on the U.S. Constitution. The Constitution bears a much closer resemblance to his vision than to the pre-convention ideas of more celebrated founders.

Dickinson’s influence survives today in the structure of “the Hill” — that is, of Congress.

For example, Dickinson suggested the Great Compromise — equal representation of states in the Senate and “proportional” representation in the House — long before the convention adopted it. It also was Dickinson’s idea to moderate “proportional” representation by allotting to every state, no matter how small, at least one representative.

The House of Representatives enjoys the exclusive right of originating revenue bills only because John Dickinson, in company with Virginia’s Edmund Randolph, fought for it. They had to overcome the resistance of several skeptics, including James Madison.

Like most of the Founders, Dickinson opposed slavery. Unlike most of those convention delegates who had owned slaves, however, Dickinson already had emancipated his. Although he favored an immediate end to the international slave trade, he also recognized political reality. Thus, he helped negotiate the compromise by which Congress could abolish the slave trade, but only after 20 years.

Dickinson moved to permit, but not require, Congress to create federal courts below the Supreme Court and (despite some initial doubts) to allow Congress to impeach and remove the president.

The Constitution’s organization of the Senate largely followed Dickinson’s ideas. He suggested that Senators represent the states equally and be selected by state legislatures for long, staggered terms. He hoped the Senate would serve as a republican analogue of Britain’s upper chamber, protecting the states as the House of Lords protected the British aristocracy.

Just as important was Dickinson’s influence on American federalism. In pre-Independence writings, he outlined his ideal division of powers between the colonies and the central government in London. The division later ordained by the Constitution between the states and the federal government was remarkably similar.

On this subject of the federal-state balance of power, Dickinson’s views occupied the middle ground between “states rights” advocates such as Robert Yates of New York and centralizers such as Alexander Hamilton and (at that time) Madison. Dickinson proposed the Constitution grant the new government a generous list of powers while reserving all other authority to the states. His constitutional plans dated June 18, 1787 contain prototypes of Article I, Section 8, the constitutional provision enumerating most congressional powers. His June 18 plans also feature prototypes of the Constitution’s Necessary and Proper Clause, which recognizes Congress’s authority to pass laws to carry other powers into execution.

After the convention adjourned, Dickinson continued to further the Constitution’s cause. He penned nine op-eds known as the Letters of Fabius. They responded to the opposition charge that the Constitution would promote aristocracy. During the convention Dickinson had predicted this charge and warned other delegates to forearm themselves against it.

Modern constitutional interpreters often rely on statements by Founders who occupied the extremes of the political spectrum. Advocates of big government typically resort to Hamilton (who played only a minor role at the convention) and advocates of small government rely on Jefferson (who wasn’t even there). This practice overlooks the moderates who actually pulled the Constitution together and secured its ratification. Of these, Dickinson was the most significant.

Forrest McDonald, America’s greatest 20th century constitutional historian, characterized Dickinson as the “the most underrated of all the founders.” Indeed, it was not until Dickinson’s own convention notes were rediscovered in the early 1980s that his contributions became better understood even among scholars.

This much is clear: John Dickinson deserves much more of our national gratitude than we have given him.

Why Did the Framers Create the Electoral College?—1st in a Series

Why Did the Framers Create the Electoral College?—1st in a Series

Colorado went Democrat in the last presidential election. But three of those elected as presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this “Hamilton elector” voted, state officials voided his ballot and removed him from office. The other electors chose someone more compliant to replace him.

Litigation over the issue still continues, and is likely to reach the U.S. Supreme Court. Moreover, President Trump’s victory in the Electoral College, despite losing the popular vote, remains controversial. So it seems like a good time to explore what the Electoral College is, the reasons for it, and the Constitution’s rules governing it. This is the first of a series of posts on the subject.

The delegates to the 1787 constitutional convention found the question of how to choose the federal executive one of the most perplexing they faced. People who want to abolish the Electoral College usually are unfamiliar with how perplexing the issue was—and still is.

Here are some of the factors the framers had to consider:

* Most people never meet any candidates for president. They have very little knowledge of the candidates’ personal qualities. The framers recognized this especially would be a problem for voters considering candidates from other states. In a sense, this is less of a concern today because, unlike in 1787, we have mass media through which candidates can speak directly the voters. In other ways, however, it is more of a concern than it was in 1787. Our greater population renders it even less likely for any particular voter to be personally familiar with any of the candidates. And, as I can testify from personal experience, mass media presentations of a candidate may be 180 degrees opposite from the truth. One example: media portrayal of President Ford as a physically-clumsy oaf. In fact, Ford had been an all star athlete who remained physically active and graceful well into old age.

* Voters in large states might dominate the process by voting only for candidate from their own states.

* Generally speaking, the members of Congress would be in a much better position to assess potential candidates than the average voter. And early proposals at the convention provided that Congress would elect the president. However, it is important for the executive to remain independent of Congress—otherwise our system would evolve into something like a parliamentary one rather than a government of three equal branches. More on this below.

* Direct election would ensure presidential independence of Congress—but then you have the knowledge problem itemized above. In addition, there were (and are) all sorts of other difficulties associated with direct election. They include (1) the potential of a few urban states dictating the results, (2) greatly increased incentives to electoral corruption (because bogus or “lost” votes can swing the entire election, not just a single state), (3) the possibility of extended recounts delaying inauguration for months, and (4) various other problems, such as the tendency of such a system to punish states that responsibly enforce voter qualifications (because of their reduced voter totals) while benefiting states that drive unqualified people to the polls.

* To ensure independence from Congress, advocates of congressional election suggested choosing the president for only a single term of six or seven years. Yet this is only a partial solution. Someone elected by Congress may well feel beholden to Congress. And as some Founders pointed out, a president ineligible for re-election still might cater to Congress simply because he hopes to re-enter that assembly once he leaves leaves office. Moreover, being eligible for re-election can be a good thing because it can be an incentive to do a diligent job. Finally, if a president turns out to be ineffective it’s best to get rid of him sooner than six or seven years.

* Elbridge Gerry of Massachusetts suggested election by the state governors. Others suggested election by state legislatures. However, these proposals could make the president beholden to state officials.

* The framers also considered election of the president by electors elected by the people on a strict population basis. Unless the Electoral College were very large, however, this would require electoral districts that combined states and/or cut across state lines. In that event, state law could not effectively regulate the process. Regulation would fall to Congress, thereby empowering Congress to manipulate presidential elections.

* In addition to the foregoing, the framers had to weigh whether a candidate should need a majority of the votes to win or only a plurality. If a majority, then you have to answer the question, “What happens if no candidate wins a majority?”On the other hand, requiring only a plurality might result in election of an overwhelmingly unpopular candidate—one who could never unite the country. The prospect of winning by plurality would encourage extreme candidates to run with enthusiastic, but relatively narrow, bases of support. (Think of the possibility of a candidate winning the presidency with 23% of the vote, as has happened in the Philippines.)

The delegates wrestled with issues such as these over a period of months. Finally, the convention handed the question to a committee of eleven delegates—one delegate from each state then participating in the convention. It was chaired by David Brearly, then serving as Chief Justice of the New Jersey Supreme Court. The committee consisted of some of the most brilliant men from a brilliant convention. James Madison of Virginia was on the committee, as was John Dickinson of Delaware, Gouverneur Morris of Pennsylvania, and Roger Sherman of Connecticut, to name only four of the best known.

Justice Brearly’s “committee of eleven” (also called the “committee on postponed matters”) worked out the basics: The president would be chosen by electors appointed from each state by a method determined by the state legislature. It would take a majority to win. If no one received a majority, the Senate (later changed to the House) would resolve the election.

Next time: Rules governing the Electoral College.

New “CI-116” Ruling Shows the Montana Supreme Court Likely Remains the Most “Activist” in the U.S.

New “CI-116” Ruling Shows the Montana Supreme Court Likely Remains the Most “Activist” in the U.S.

Note: This is a two part version similar to the single-part essay immediately below. At the request of the Missoulian newspaper, which published it, I expanded it into two parts. This version explains more, so it is probably more useful to non-lawyers.

Part I.

The Montana Supreme Court has a history of striking down constitutional initiatives that restrain government power. Voiding CI-116 (“Marsy’s Law”) is only the latest example. The court treated CI-116 the same way it treated CI-23, CI-27, CI-30, and CI-75.

In a 2012 Montana Policy Institute report I documented the court’s treatment of ballot measures over three decades. Every measure expanding government power survived the Montana Supreme Court. Almost every measure restraining government died there.

Such a pattern does not arise by accident. It arises from a system inherently biased and in need of reform.

In the usual court case, the plaintiffs cannot maintain their suit—much less win—unless they show they have “standing.” This means they must demonstrate the defendants have injured them, or imminently threaten to injure them, in some concrete way. But in the case of CI-116 and its predecessors, the Montana Supreme Court dispensed with the standing requirement. The plaintiffs claimed, but never actually proved, that they would be harmed by the initiative they opposed.

In the usual case, the plaintiffs begin at the trial level, in the district court. If they lose, they may appeal. But when CI-116 and its predecessors were challenged, the justices allowed the challengers to cut to the front of the line. In other words, the Supreme Court took the case at once. There was no trial court hearing. There was no testimony. There was no opportunity to cross-examine. There were no formal findings of fact.

In the CI-116 case Justices Jim Rice and Beth Baker dissented. As well they should have: The court’s procedure in these cases is unlike any other this side of the Third World.

In view of this history of systemic bias, it is difficult to take seriously the court’s stated reasons for its decision. Let us look at some of them nevertheless. This Part I examines two, and Part II examines some others.

First, the court ruled that the Montana constitution’s “separate-vote” provision allows judges to review an amendment’s content. The separate-vote provision states that separate amendments should be tabbed on the ballot so people can vote on them separately.

As it has previously, the court misconstrued the meaning and purpose of the separate-vote provision. Its background shows it to be a direction to the secretary of state not to combine different initiatives on the ballot: The people must be allowed to vote “yes” or “no” on each. The separate-vote provision was not intended as a vehicle for judges to second-guess the content of individual initiatives.

Once the court asserted its power to second-guess how CI-116 was drafted, it proceeded to rip the measure asunder. As in the past, the justices asserted that a single amendment with more than one “part” could be deemed more than one amendment, each requiring a separate vote to be valid.

Of course, no one but a few activist courts defines “amendment” that way. For example, the First Amendment to the U.S. Constitution has always been known as a single amendment although it consists of several distinct parts protecting six specific constitutional rights. The Fifth Amendment contains five distinct parts. The Fourteenth Amendment contains five sections and at least nine discrete provisions sprawling over a range of subjects.

Yet we consider the First, Fifth, and Fourteenth Amendments to be individual amendments because in ordinary usage an “amendment” is any measure the ratifiers choose to adopt as such. How many parts it has is up to the ratifiers. It is no business of the judges.

Next time: Part II examines the court’s other stated reasons and recommends a course of action.

* * *

 

Part II

To justify second-guessing how CI-116 was drafted, the Montana Supreme Court relied on a false premise. The premise was that deliberation over a voter initiative is inferior to deliberation in the legislature. This premise shows unfamiliarity with how the initiative and legislative processes actually work.

Legislative consideration is often hurried. Logrolling is very common. Lawmakers frequently settle for unsatisfactory language in hope of a later cure.

By contrast, a voter initiative is drafted over an extended period of time. There usually is no logrolling. By law, each draft is reviewed by expert state attorneys. They make recommendations, which frequently lead to further revision. Then a lengthy petition process provides weeks or months for public discussion. An official pamphlet makes the text and pro- and con- arguments available to every voter. And the election campaign provides extended time for still more discussion.

In other words, deliberation in the initiative process, while somewhat different from that in the legislature, is usually superior to legislative deliberation. This argues for less judicial monitoring of initiatives than of bills—not more.

As “precedent” for its holding, the Montana Supreme Court adopted a constitutional rule from Oregon. It did so even though Oregon’s constitutional language differs from Montana’s. The rule is that an amendment may not make two or more “substantive changes” unless the changes are “closely related.”

The justices failed to define “closely related.” Nor did they take testimony as to which provisions were closely related. This may explain some oddities in their decision. For example, they held that “an accused’s right to bail is not closely related to victims’ rights.” I daresay most people would disagree: A victim has a right to be protected from a second assault by one inadvisably released on bail.

Stunningly, the majority did not even count the number of CI-116’s “substantive changes” correctly. As the dissent observed, the majority repeatedly double-counted single changes by counting language as one change and effect as another.

The upshot of all of this is that the court has adopted a standard that renders it almost impossible for Montanans to amend their own constitution—at least to restrain the power of government.

Under that standard, don’t think even stark simplicity could save an amendment. Suppose an initiative states only, “The freedom of the press shall not be abridged.” Under the court’s rule, the new language counts as one change. Its effect on the legislature’s power is a second change. Its effect on the executive power is a third change. Its effect on the Montana University System a fourth change, and so on. The press is not “closely related” to the legislature, the executive, or the university system. Hence, the amendment is void.

When the court struck down the CI-75 “vote on taxes” amendment in 1999, I pointed out publicly that the court was threatening the constitutional initiative process. Apologists for the court harshly criticized me for saying so. But intervening events fully vindicate what I said then. Montanans MUST reform the state supreme court before they lose whatever democracy they have left.

Finally: The messenger of uncomfortable facts is often attacked with false charges. Hence the following disclosures: (1) I was not paid to write this article. (2) I have never voted for or otherwise supported a Marsy’s law. (3) In the only Montana Supreme Court case in which I was a party, our side won. (4) I was the unpaid drafting committee chairman for CI-75, but not a party or attorney in the ensuing case.

 

The Montana Supreme Court’s Demonstrable Bias Against “Conservative” Voter Initiatives

The Montana Supreme Court’s Demonstrable Bias Against “Conservative” Voter Initiatives

This article first appeared in the Great Falls Tribune.

The Montana Supreme Court has a history of striking down constitutional initiatives that restrain government power. Voiding CI-116 (“Marsy’s Law”) is only the latest example. The court treated CI-116 the same way it treated CI-23, CI-27, CI-30, and CI-75.

A 2012 Montana Policy Institute report documented the tribunal’s handling of ballot measures over three decades. Every measure expanding government power survived the Montana Supreme Court. Almost every measure restraining government died in the Montana Supreme Court.

A pattern like this is does not arise by accident. It arises from a system inherently biased and in need of reform.

Plaintiffs generally cannot maintain a lawsuit—much less get a decision—unless they show concrete injury. But in the case of CI-116 and its predecessors, the court demanded no proof of injury. It even let the challengers jump to the head of the line instead of proceeding through the normal trial and appeals process. There was no trial court hearing, no testimony, and no findings of fact.

 Such conduct is unlike that of any other judicial panel this side of the Third World. To their credit, Justices Rice and Baker dissented.

In view of this history, it is difficult to take seriously the court’s stated reasons for its decision. But let’s examine them:

First: The justices ruled that the state constitution’s “separate-vote” provision allows them to review an amendment’s content. They misconstrued the provision’s meaning. Its background shows it is a direction to the secretary of state on how to designate voter initiatives and legislative referrals. It has nothing to do with an amendment’s content.

Second: The court decided that separate provisions can render an amendment several amendments rather than one. By that logic, the First Amendment to the U.S. Constitution would be six amendments because it guards six different rights. The Fifth Amendment would be five, and the Fourteenth at least seven.

Of course, the First Amendment is really not six, nor the Fifth Amendment five, nor the Fourteenth seven. In common American usage an “amendment” is any measure the ratifiers adopt as an amendment. How many parts it has is the concern of the ratifiers—not of the judges.
Third: The majority defended strict content review because it assumed deliberation in the initiative process is inferior to deliberation in the legislative process. This assumption is wrong.
Consideration in the legislature is often hurried, logrolling is common, and lawmakers frequently settle for unsatisfactory language in hope of a later cure. By contrast, an initiative is drafted slowly, usually without logrolling. By law, each draft is reviewed by expert state attorneys, often leading to further revision. A lengthy petition process and an election campaign offer months for public discussion. An official pamphlet makes the text and pro- and con- arguments available to every voter.

The deliberation factor argues for less judicial monitoring of initiatives than of bills—not more.

Fourth: The court adopted an Oregon rule even though Oregon’s constitutional language differs from Montana’s. An amendment, the court said, may not make two or more “substantive changes” unless the changes are “closely related.”

The justices were neither able to define “closely related” nor did they take testimony as to which provisions were closely related. This may explain why they ruled that “an accused’s right to bail is not closely related to victims’ rights.” I daresay most people would disagree. A victim has a right to be protected from a second assault by one inadvisably released on bail.

Stunningly, the majority did not even count the number of CI-116’s “substantive changes” correctly. As the dissent observed, the majority repeatedly double-counted single changes by counting language as one change and effect as another.

Under this holding, it is almost impossible for Montanans to amend their own constitution.

Don’t think that even stark simplicity save an amendment. Suppose an initiative states only, “The freedom of the press shall not be abridged.” Under the court’s rule, the new language counts as one change. Its effect on the legislature’s power is a second change. Its effect on the executive power is a third change. Its effect on the Montana University System a fourth change, and so on. The press is not “closely related” to the legislature, the executive, or the university system. Hence, the amendment is void (particularly because it restrains government).

When the court struck down the CI-75 “vote on taxes” amendment in 1999, I pointed out publicly that the court was threatening the constitutional initiative process. Many people criticized me for saying so. But intervening events fully vindicate my position. Montanans MUST reform the state supreme court before they lose whatever democracy they have left.

Finally: The messenger of uncomfortable facts is often attacked with false charges—hence the following disclosures: (1) I was not paid to write this article. (2) I have never voted for or otherwise supported a Marsy’s law. (3) In the only Montana Supreme Court case in which I was a party, our side won. (4) I was the unpaid drafting committee chairman for CI-75, but not a party or attorney in the ensuring case.

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Left-of-center activists are prodding state lawmakers to waste public time “ratifying” a constitutional amendment that, by its very terms, is long dead and can no longer be ratified. Earlier this year they even convinced the Nevada legislature to sign on to their campaign.

They should use their time and energy more wisely by campaigning for amendments that are both feasible and would make life better. One such amendment was proposed by James Madison and approved by Congress over two centuries ago — but could still be ratified today.

In 1972, Congress proposed a measure supporters dubbed the “Equal Rights Amendment” (ERA). On its face, the ERA seemed to ensure equality for women. In a burst of enthusiasm, 35 of the necessary 38 state legislatures ratified it.

As public debate continued, however, it became clear the ERA was a poorly-drafted measure that would do little for women’s rights. It would have transferred massive amounts of power away from local governments and elected representatives, handing it instead to lawyers, judges, and bureaucrats. When state legislatures realized this, the ratifications stopped and several states rescinded.As proposed by Congress, the ERA provided that it would become part of the Constitution only if 38 states approved it within seven years — that is, by 1979. When the ratification campaign bogged down, Congress tried to change the rules by extending the deadline to 1982. Not surprisingly, a federal court ruled that Congress could not do that. Although the court’s decree later proved unnecessary — state legislatures weren’t going to ratify such a flawed amendment anyway—the court’s opinion remains one of the most thorough judicial discussions of the amendment procedure.

Of course, even if Congress’s extension had been valid, the ERA still would have expired long ago.

Do activists have any serious legal basis for raising the ERA zombie? Well, no. Their “legal” arguments are based on a 1997 article written as a law student project. As often happens with student projects, the article is so error-ridden that no court is likely to take it seriously.

Activists should spend their time more productively by promoting useful constitutional reforms overwhelmingly favored by the American people — reforms now blocked by an unresponsive Congress. Examples include federal term limits and a balanced budget rule.

Or, if they want to exercise their fascination for the ancient, they could campaign to complete ratification of James Madison’s original first amendment, which Congress proposed in 1789 as part of the Bill of Rights. Although the requisite number of states have never approved it, unlike the ERA, the original first amendment has no ratification deadline.

As proposed by Congress, the measure provided for growth in the House of Representatives along with the growth in population, until such time as:

the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Adopting this amendment today might induce us to convert the U.S. House of Representatives from a council of Washington D.C. politicians into a large assembly citizen-lawmakers — linked to each other electronically, but residing in and representing their local communities. (The Senate would not be affected.) A large House of Representatives would better represent popular opinion and make it much harder for lobbyists and special interests to control Congress.

It would give citizens much better access to Congress than they have now. It would magnify the voices of the women the activists claim to care about.

Not only has modern technology rendered a very large House of Representatives practical, the cause is also politically feasible: In 1992 dedicated citizens secured ratification of Madison’s original second amendment — now in the Constitution as the 27th.

Whether or not activists undertake that project, they should stop wasting public time. Let the decomposed corpse of the ERA rest in peace.