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Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

This is the last 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.

Ill-health motivated John Dickinson to leave the federal convention a day early. Before departing, he instructed his friend and Delaware colleague, George Read, to affix his signature to the document. There are, therefore, 39 signatures to the document but only 38 men physically signed.

In early 1788, Dickinson perceived that ratification momentum was slowing. Accordingly, he composed for publication nine letters written under the pseudonym, “Fabius.” The Letters of Fabius were well-received and widely reprinted.

Unlike The Federalist or the “Aristides” essays of Alexander Contee Hanson, Fabius made no attempt to provide a comprehensive overview of the Constitution. The letters focused primarily on answering the Antifederalist contention that the Constitution was too “high-toned,” and that its adoption would lead to aristocracy. If the reader reviews the Dickinson speech reported in my last post, he or she will see that Dickinson had anticipated this objection.

Fabius centered on a two-fold response. First, the rules governing the House, Senate, and president assured popular control. House members would be elected directly to short terms, and one third of Senators would be elected indirectly every two years. The president would be chosen by a method impervious to corruption; and although he enjoyed a veto, it was not absolute. The British had expanded and retained their liberties with far fewer democratic guarantees.

Second, freedom would be preserved by the confederal or federal (the words then were synonymous) nature of the system. In the original social compact, citizens donated certain rights or powers (words also then largely synonymous) to a central authority so as to protect retained rights/powers. Similarly, in a confederation, member states contributed rights/powers to a central authority so as to protect their remaining rights/powers.

But just as citizens are bound to be ever jealous of their rights and to check government accordingly, so also would the states be obligated to protect their reserved powers. “America is, and will be, divided into several sovereign states, each possessing every power proper for governing within its own limits for its own purposes, and also for acting as a member of the union.” Any states that allowed the federal government to interfere in their sovereign jurisdiction would be guilty of a breach of trust, for the “trustees or servants of the several states” were obliged to protect the authority citizens had placed in them. If state officials lose ground to the federal government, Dickinson maintained, “It will be their own faults.”

In addition to pressing his twofold argument, Dickinson made other points. One was the disadvantages of a confederation in which the central government had insufficient power. Dickinson cited both the Articles of Confederation and the fracture of two ancient Greek federations as examples. He also offered a positive case study: the 1707 union of England with Scotland. After reciting dire pre-union Scottish predictions his readers knew proved to be false, Dickinson identified the union’s benefits: the cultivation of virtues and correction of errors; protection for the lower classes; improvements in agriculture, science, arts, trade, and manufactures; the rule of law; peace and security at home, and increased respectability abroad. Amid the enjoyment of these benefits, the Scottish Church and laws, courts and judicature had remained established and secure.

A well-balanced confederation rendered all its members stronger. In modern terms, it reduced state shirking and free riding. Further, as in the human body, “A stroke, a touch upon any part, will be immediately felt by the whole.” A diseased member of the body severed from the rest could not recover, while one remaining connected could be saved.

Confederation was Dickinson’s answer to Montesquieu’s lament that a large territory cannot be governed by republican forms, and that attempting to do so resulted in fragmentation or tyranny. Confederation, said Dickinson, would ensure that government was effective throughout American territory while still checking the urge to centralize. No confederation had ever featured the protections contained in the Constitution. If they proved inadequate, the Constitution provided yet another response: a method for adopting “amendments on the authority of the people.”

* * * *

The author of Fabius was nearing the end of contemporaneous life expectancy, but in the event he was to live another two decades. During that time he maintained a large correspondence, including with Thomas Jefferson, who even as president always answered his letters.

In 1791-92, Dickinson served as president of the Delaware state constitutional convention, and briefly as a state senator thereafter. He wrote several articles and pamphlets, including new Fabius letters arguing for a pro-French foreign policy.

Most of his remaining life, however, was spent in retirement. He died in 1808, age 75.

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.


Balancing Local Control and Individual Rights

Balancing Local Control and Individual Rights

This article originally appeared in The Hill.

“Local control” is something politicians promote or ignore at their convenience. The U.S. House of Representatives, led by a Republican majority supposedly dedicated to returning power to the states, just voted to override state design and safety rules for self-driving cars. In Colorado, opponents of hydraulic fracturing (fracking) began touting “local control” over fracking only when they lost a bid for a statewide ban. And their so-called “local control” proposal would have allowed cities and counties only to tighten anti-fracking rules, not to loosen them.

Political hypocrisy aside, keeping government close to the people is generally a good idea. Most of the famous bursts in human intellectual and technological progress have occurred in places featuring considerable — sometimes extreme — political decentralization. They have included the city states of ancient Greece and of Renaissance Italy, 17th and 18th century Britain, and 19th century America, among others.

So when is local control good in reality rather than merely as a slogan?

In drafting and ratifying the U.S. Constitution, the American founders devoted much principled consideration to this question, and as long as their formula was respected the system usually worked very well. Indeed, the seeds of current federal dysfunction were sown when the courts stopped enforcing the Constitution’s boundaries on federal power.

Based on our experience under the Constitution, therefore, some argue for granting cities and counties the same freedom from state control as states are supposed to enjoy from federal control.

However, the analogy is not wholly valid. This is not merely because local governments are creations of state government, while the states are semi-sovereignties. A more important reason is that local governments do not feature the checks and balances — and therefore the protections for individual rights — characteristic of all, or almost all, states.

All states but one (Nebraska) have bicameral legislatures. But nearly all local councils are small, unicameral bodies. State constitutions divide power among the legislative, executive, and judicial branches. Local charters usually blend legislative and executive authority, and in practice municipal law enforcement and courts may serve as revenue-raising agencies.

Most states harbor a variety of special interests (or in James Madison’s term, “factions”) that monitor and check each other. Local units frequently are dominated by so few special interests that they can readily (in Madison’s words) “concert and carry into effect schemes of oppression.” Most state governments are monitored by a vigorous local press; many municipalities are too small to support an effective working press.

Under such conditions, it is no wonder that “local control” may become local tyranny.

On the other hand, the Constitution does offer at least one idea for how to divide state and local spheres: The Constitution grants the federal government extensive authority to protect individual rights from state assault.

The original Constitution banned states from adopting certain kinds of laws, such as ex post facto laws, that violate individual rights. The document also required the federal government to ensure that states not degenerate into monarchies or dictatorships.

Constitutional amendments have carried this further. Today the Constitution allows the federal government to prevent states from re-instituting slavery or unduly infringing voting rights. In addition, the Fourteenth Amendment permits the federal government to interfere if a state denies equal protection of the laws or violates certain protections in the Bill of Rights.

This allocation of federal and state power offers a clue for allocating state and local power. Local governments should be free to operate schools, parks, and police forces, but the state should ensure local government does not oppress individual rights.

Some states have been implementing this idea. Several have passed or are considering laws to protect the free speech rights of students at state universities, which are functionally a kind of local government. Colorado recently adopted a measure curbing municipal judges from abusing their fining power. After a long struggle the Montana legislature restricted cities’ practice of effectively taxing people who neither resided within the city nor owned land there.

State protection of landowners is crucial, because they can’t escape oppression merely by picking up their land and moving away. The same regulations that infringe their rights as owners may prevent them from selling their property at a reasonable price so they can relocate.

Accordingly, Arizona now largely forbids localities from regulating away property rights without compensation, while Colorado curbs local laws that purport to restrict landowners’ oil and gas rights.

To define the ideal boundaries between state and local control, we should ignore the political hypocrites and weigh sound principles. One such principle is that state governments should protect citizens’ fundamental rights from local oligarchs who try to take them away.