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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.”

Convention of States: How the States Meet to Bypass Congress

Convention of States: How the States Meet to Bypass Congress

This article was originally published in Townhall.com.

The idea of a convention of states such as the one scheduled for Phoenix, Arizona on September 12 may be unfamiliar to most people, but similar conventions have gathered throughout American history.

British-American colonies first met in convention in 1677 to negotiate an Indian treaty. After that first meeting, inter-colonial conventions gathered on average every four to five years, up to the time of Independence. They considered Indian relations, defense, and other common issues. The famous Stamp Act Congress (1765) and the First Continental Congress (1774) were both inter-colonial conventions, and the Founding generation referred to them as such.

After the Declaration of Independence, the pace of conventions accelerated. State commissioners (delegates) met ten times between 1776 and 1786, including conclaves in Providence, Rhode Island (1776-77), Yorktown, Pennsylvania (1777), New Haven, Connecticut (1778), Philadelphia, Pennsylvania (1780), and Annapolis, Maryland (1786). These gatherings focused mostly on defense and economic matters. The 11th convention of the Founding era became the most famous: the 1787 Philadelphia conclave destined to draft a new Constitution.

Not all these early conventions were successful, but the convention mechanism proved invaluable. Conventions frequently resolved difficult problems that otherwise would have gone unsolved. And contrary to some of the claims you hear today, commissioners stuck by their agendas and did their jobs. This is why Article V of the U.S. Constitution authorizes a convention of states as a way to propose needed constitutional amendments Congress refuses to propose.

Each convention of states is a temporary task force of duly authorized state representatives convened to address and propose solutions to one or more specific issues. A convention results when states accept an invitation (referred to as a “call”) sent by a state, a prior convention, or, occasionally, Congress. The 2017 Phoenix convention was called by Arizona’s state legislature to prepare for the likelihood that a convention will soon meet to propose an amendment requiring Congress to balance the federal budget.

The Phoenix convention is not the first to be held since the Constitution was adopted. In fact, some of the most interesting conventions of states met in the 19th and 20th centuries. The New England states met in 1814 in Hartford, Connecticut to discuss how those states should respond to the unpopular War of 1812. The Hartford Convention proposed several amendments to the U.S. Constitution.

Southern states assembled twice in Nashville, Tennessee in 1850 to coordinate a response to what they saw as overreach by the North. In early 1861, Virginia called a general convention for Washington, DC. That assembly proposed a constitutional amendment it hoped would stave off the Civil War. (The amendment was not adopted.) At the same time, several seceding states met in Montgomery, Alabama to draft the Confederate Constitution.

Lasting success was enjoyed by the 1889 convention of states called by Kansas for St. Louis, Missouri. It successfully proposed state and national anti-trust laws. During the 20th century, a series of small conventions negotiated the allocation of western river waters. The best known of these was the seven-state Colorado River Compact Commission of 1922. The latest was the five-state convention that divided the waters of the Upper Colorado River in the 1940s.

Historically, most conventions of states have consisted of only a few states within a particular region, such as New England or the Midwest. But seven have been national in scope (“general conventions”). Whether regional or general, however, conventions have followed certain common protocols, including the rule by which participating states have equal votes.

The Article V Information Center in Denver recently posted a list of prior conventions of states. The list shows there have been 38 fully verified conventions and another five for which the Center has partial information. The Center website contains a great deal of additional information about conventions of states and the constitutional amendment process.

How the States Have Used the “Convention of States”

How the States Have Used the “Convention of States”

This article first appeared Aug. 15, 2017 in The Hill.

Representatives of state legislatures from across the nation will converge in Phoenix, Arizona on Sept. 12 to participate in a traditional American institution called a “convention of states.”

Conventions of states are valuable. They help ensure Washington, DC doesn’t dictate all decisions on every subject.

The purpose of the meeting in Phoenix is to plan for another, even more important convention — one to propose adding a balanced budget amendment to the U.S. Constitution. The latter event is likely within the next two to three years.

Most people know the U.S. Constitution was drafted at a convention of states held in 1787. What few know is that there have been many other conventions of states. They and their colonial predecessors have met periodically for more than 300 years.

Apologists for unlimited federal power have done a good job of suppressing public awareness of that fact. They often claim or imply interstate meetings are “constitutional conventions” and that they are largely unprecedented, but the truth is dramatically different.

The Article V Information Center I run recently posted a list of prior conventions of states. The list shows there have been 38 fully verified assemblies of this kind and another five for which the Center has partial information — seven of which happened since 1787.

Not every interstate conclave qualifies as a convention of states. A true convention of states is a temporary task force where commissioners from three or more states consider possible solutions to problems on the agenda. They are essentially diplomatic meetings among sovereignties and, historically, have followed well-established procedures and protocols. For example, each state generally has one vote, and a formal recommendation requires approval by a majority of states present and voting.

Most interstate conventions have been regional affairs, involving just a handful of participants. But at least seven have been “general conventions” — that is, meetings in which states from all over the country take part. The Phoenix gathering will be a general convention.

The first conclave of this kind occurred in 1677, when several colonies convened in Albany, New York to negotiate a treaty with Indian tribes.

Later conventions negotiated additional Indian treaties. They also planned defense against hostile tribes and French Canada. A 1754 convention negotiated a treaty and recommended a plan by Benjamin Franklin to unify the colonies.

When tensions with Great Britain arose, the 1765 Stamp Act Congress and the 1774 First Continental Congress — both formal conventions of colonies — coordinated America’s response.

The 1776 Declaration of Independence converted the colonies into states, and those states continued to meet in convention. Their conventions addressed problems the Continental Congress could not solve. For example, a general convention met in Philadelphia in 1780 to propose a solution to rampant wartime price inflation.

Conventions of states continued into the 19th and 20th centuries. Not all these gatherings were successful. The 1780 convention broke up without proposing anything. The assemblies in Hartford, Connecticut in 1814 and Washington, DC in 1861 recommended constitutional amendments, but their proposals went nowhere.

On the other hand, some conventions produced great things. The 1744 conference in Lancaster, Pennsylvania negotiated a significant Indian treaty. The 1786 Annapolis Convention proposed the outstandingly successful Constitutional Convention. Recommendations from the 1889 St. Louis Convention led to passage of state and federal anti-trust laws. A 1922 convention (called the Colorado River Commission) negotiated the Colorado River Compact. During the 1940s, an interstate convention allocated water in the Upper Colorado River.

James Madison pointed out that under our Constitution the states have crucial responsibilities in national governance. Conventions help the states meet those responsibilities.

List of Conventions of States and Colonies in American History

List of Conventions of States and Colonies in American History

Introduction

Conventions of states, and before Independence of colonies have met frequently over the past three centuries. A “Convention for proposing Amendments” held under the Constitution is a gathering of this type.

The following list itemizes all known conventions of states or colonies.

To qualify as a convention of states (or colonies), the gathering must be a temporary meeting of legislatively-authorized representatives of at least three states or colonies, convening pursuant to instructions to consult about and/or negotiate solutions to assigned problem(s). At some conventions of states, other sovereignties have been invited to participate. The convention may be charged with proposing solutions or, in rare cases, with presenting solutions that participating states or colonies agree in advance to accept. Legislative authorization may be direct (by a specific statute or resolution) or indirect (by prior legislation or standing order).

In the list below, some conventions are identified as general. A convention is general if all states, or at least states from all regions, are invited to participate. If not identified as general, the convention is partial or regional.

Conventions of states sometimes are known by other names. Conventions meeting before establishment of the Second Continental Congress usually were called “congresses”—although they were called conventions as well. Some gatherings have been called “councils” or “committees” as well as conventions. The official name of the assembly in Washington, D.C. in 1861 was the “Washington Conference Convention,” but most history books refer to it by its unofficial nickname: the Washington Peace Conference. Similarly, twentieth-century conventions been called “commissions” (e.g., Colorado River Compact Commission). But they actually were temporary conventions of states, and should not be confused with those commissions that are permanent administrative bodies.

The first list includes the verified conventions. A convention is verified if we have reliable information of the date and place of meeting, subject matter, and states or colonies participating. The second list is of unverified conventions. A convention is unverified if we have reliable information that a meeting was held, but not as to all of those items.

Finally: Not included on the list are conventions that were called, but never met. These include, for example, the Charleston price convention called by Congress for the Southern states in 1777, the convention of Northeastern states called by Massachusetts in 1783, and the Navigation Convention called for Pennsylvania, Delaware, and Maryland for (1786). Although these planned conclaves proved abortive, the historical records surrounding them is useful in confirming and clarifying standard interstate convention protocols.

Further information on these conventions is located at articlevinfocenter.com. Additional information on conventions up to 1787 appears in this article.

Verified Conventions

          Before Independence

  1. Albany (1677) (Indian negotiations)
  2. Albany (1684) (Indian negotiations)
  3. Boston (1689) (defense issues)
  4. Albany (1689) (Indian negotiations)
  5. New York City (1690) (defense)
  6. New York City (1693) (defense)
  7. Albany (1694) (Indian negotiations)
  8. New York City (1704) (defense)
  9. Boston (1711) (defense)
  10. Albany (1722) (Indian negotiations)
  11. Albany (1744) (defense)
  12. Lancaster, PA (1744) (Indian negotiations)
  13. Albany (1745) (defense)
  14. Albany (1745) (Indian negotiations)
  15. New York City (1747) (defense)
  16. Albany (1751) (Indian negotiations)
  17. Albany (1754) (Indian negotiations & plan of union) — general
  18. New York City (1765) (response to Stamp Act) — general
  19. Fort Stanwyx (Rome, NY) (1768) (Indian negotiations)
  20. New York City (1774) (response to British actions)—general

           After Independence

  1. Providence, RI (1776-77) (paper currency and public credit)
  2. York Town, PA (1777) (price control)
  3. Springfield, MA (1777) (economic issues)
  4. New Haven, CN (1778) (price controls and other responses to inflation)
  5. Hartford, CN (1779) (economic issues)
  6. Philadelphia (1780) (price controls)—general
  7. Boston (1780) (conduct of Revolutionary War)
  8. Hartford (1780) (conduct of Revolutionary War)
  9. Providence, RI (1781) (war supply)
  10. Annapolis, MD (1786) (trade)—general
  11. Philadelphia (1787) (propose changes in political system)—general
  12. Hartford, CN (1814) (New England states’ response to the War of 1812)
  13. Nashville, TN (1850)(Southern response to the North)
  14. Washington, DC (1861)(propose a constitutional amendment)—general
  15. Montgomery, AL(1861) (write the Confederate constitution)
  16. Louis, MO (1889) (propose anti-trust measures)
  17. Santa Fe,  NM & other cities (1922) (negotiate the Colorado River Compact)
  18. Denver & other cities (1946-49) (negotiate Upper Colorado River Basin Compact)

Unverified Conventions

  1. Boston(?) (1757) (defense)
  2. Salt Lake City (1920) (Western water issues)
  3. Lower Colo. River states (>1922) (unsuccessful river negotiations)
  4. Colorado Springs, Santa Fe (1924, 1928-29) (negotiate Rio Grande River Compact) (technically may have comprised 2-3 separate conventions)
  5. Washington, D.C. (1924 & intermittently thereafter)—unsuccessful negotiation regarding North Platte River)

 

The last convention of states ever held? It Centered on the Upper Colorado River

The last convention of states ever held? It Centered on the Upper Colorado River

I recently obtained the records of what may be the last convention of states ever held—records demonstrating that states were meeting in convention well into the mid 20th century.

A “convention of states” as the American Founders and subsequent generations understood the term, is a temporary conclave of legislatively-authorized representatives from three or more states. It is both a diplomatic gathering—the representatives or “commissioners” are essentially ambassadors from their respective legislatures—and a problem-solving task force. Sometimes representatives of sovereignties other than states, such as Indian tribes or the federal government (or, in colonial times, the British crown), have been invited to participate. Conventions of states also have been called “committees of states,” “congresses,” and “commissions.”

Conventions of states, both national (“general”) and regional (“partial”), have met for many different purposes: to plan common defense, work out common responses to political challenges, negotiate treaties with Indian tribes, seek and propose solutions to economic problems, propose constitutional amendments, and, on two occasions (Philadelphia in 1787 and Montgomery in 1861) to prepare new constitutions. Only the last two can properly be called constitutional conventions.

In the 20th century, states used them to hammer out western water compacts. I previously reported on the Santa Fe Convention of 1922, formally called the Colorado River Compact Commission. It was the gathering of seven states and a federal commissioner, then-Secretary of Commerce Herbert Hoover.  It negotiated the Colorado River Compact. I also have reported that similar gatherings met to negotiate the Rio Grande River Compact and an abortive North Platte River compact. My latest acquisition is the official record of the convention that negotiated the compact covering the Upper Colorado River —the portion north and east of Lee Ferry, Arizona.

This was a true convention among five states: Arizona, Colorado, New Mexico, Utah, and Wyoming. It met intermittently from July 22, 1946 to August 5, 1949. Commissioners attended from each state. They were not chosen by their legislatures directly, but legislative statutes authorized the appointment of each and gave each his power. At the request of the states, President Truman named a federal representative to participate as well: Harry W. Bashore, formerly Commissioner of the U.S. Bureau of Reclamation.

The group’s assignment was to divide up the waters of the Upper Colorado River among the five states and determine how much each state had to provide to the states of the Lower Colorado River. This was a highly technical task. Accordingly, unlike most conventions (but like the Santa Fe meeting) there was only one commissioner from each state, but each was assisted by a technical staff. In addition, the group created an engineering advisory committee and a legal advisory committee. The technical nature of the job was why the group had to keep adjourning and reassembling: Engineering studies and negotiations over local streams were performed in the interim.

Another interesting variation is that, like the 1922 convention, the Upper Colorado River group met in different cities and towns at different times: Cheyenne, Wyoming; Denver, Colorado; Salt Lake City and Vernal, Utah; and Santa Fe, New Mexico. In addition, it held public hearings in four other towns. In all, there were 41 days of sessions grouped into eleven formal “meetings.” The first eight meetings led to completion of the compact in 1948. The remaining three, held the following year, were short sessions for wrapping up business.

The conclave also gave itself a name, since its authorizing documents didn’t specify one. It called itself the Upper Colorado River Basin Compact Commisssion.

Within those variations, the group operated according to standard convention of states protocols. Specifically:

* The commissioners established their own procedures. Thus, they made it clear that a preliminary meeting that included the state governors did not bind them, and they re-voted on the decisions made at that preliminary meeting.

* Each state had one vote, cast by its commissioner, no matter how many people from each state happened to be present. After briefly considering a unanimity rule (such as the Colorado River Commission adopted but eventually abandoned), the group retained a rule of decision by a majority. However, it strove for unanimity, and generally was successful. The federal representative had no vote.

* The commissioners elected their own officers: As has been typical among interstate conventions the chairman was a commissioner and the secretary was not. Although he could not vote, Mr. Bashore was elected chairman.

* The record reproduces many roll call votes by states, some quite dramatic. The voting usually was open. But the vote on the overall percentages by which states would divide the river water was by secret ballot.

* The commissioners affirmed that they were negotiating by virtue of the states’ reserved sovereign powers, not by virtue of permission of federal law (as President Truman seemed to think). In this respect, the Upper Colorado River Convention was typical—although a gathering held under Article V would derive its authority from the Constitution rather than from reserved sovereign power.

The proceedings the Upper Colorado River Basin Compact Commission are impressive. The commissioners and staff worked very hard. Most people involved were thoughtful and highly qualified. The engineering studies were voluminous.

Also impressive is the recurrence of some important names. A listed adviser was Ralph Carr, who later as governor of Colorado during World War II, won national attention by opposing the Roosevelt administration’s groundless incarceration of Japanese-American citizens. Another listed adviser was Barry M. Goldwater, later U.S. Senator and the 1964 Republican nominee for President.

The compact the convention negotiated was approved by all five states and by Congress. It is still in effect. It created a permanent administrative body called the Upper Colorado River Commission, to whose staff I am grateful for loaning me the convention record.