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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.

Forgotten Founders: Ebenezer Hazard

Forgotten Founders: Ebenezer Hazard

We celebrate leading American founders such as George Washington and James Madison. But we sometimes overlook their talented colleagues.

Forgotten Founders
Ebenezer Hazard

One of these was Ebenezer Hazard. As postmaster general under the Articles of Confederation, he helped bind the country together. As a historical editor, he preserved precious documents for a generation of American historians.

Hazard, born in 1744, was a year younger than Thomas Jefferson. He was seven years older than Madison. New parents nowadays avoid the biblical name “Ebenezer”—possibly because of its association with Charles Dickens’ Ebenezer Scrooge—but the name was more common then. (It means “stone of help.”)
Like Madison, Hazard was educated at what is now Princeton University. Unlike Madison, Hazard moved to New York City and entered business after graduation. He first worked for a mercantile firm, then for a bookseller. In 1770, he became a partner in a book selling company. However, he soon began collecting historical documents. He conceived massive republishing project to ensure that ancient materials were not permanently lost or destroyed.

Hazard spoke with many people about his document publication plan. Among them were other founders, such as Jefferson and John Adams. Both were impressed: “Hazard is certainly very capable of the business he has undertaken,” Adams wrote. “He is a genius.”

The Revolution Overtakes Events

For the moment, however, Hazard’s publication project was overtaken by the Revolution. In 1775, Americans stopped patronizing the British royal postal service, creating their own instead. Hazard became postmaster for New York. Another founder, Ben Franklin, was named postmaster general for the continent. Franklin subsequently appointed Hazard “surveyor” (inspector) for the continental post office.

In 1776, Franklin’s son-in-law, Richard Bache, succeeded Franklin as postmaster general. Bache served until his retirement in 1782.

Hazard Becomes Postmaster General for the Founders

Bache may have not been quite up to the job. But Hazard, who followed Bache as postmaster, overcame constant political interference from the Confederation Congress and made the system work. By 1785, it was earning a profit. Hazard thereby provided Congress, which had no taxing power, with desperately needed revenue. Hazard also left valuable journals of his travels throughout the country, when he undertook postal inspection tours.

In 1783 and again in 1788, congressional committees investigating postal operations gave Hazard’s administration very high marks.

Nevertheless, Hazard, like many other competent administrators before and since, was gored by the horns of politics. He became dissatisfied with the quality of service between New York and Boston. He recommended to Congress a plan, which Congress then authorized, to replace stage coaches with post riders on that New York-to-Boston route.

The transition was not smooth. There were substantial service interruptions. More seriously, Hazard offended increasingly powerful newspaper owners who had taken advantage of the coaches, which had provided the owners with free and low-cost newspaper delivery. With less room in their mail bags, post riders could not offer newspapers that perk.

The timing of the delivery snafu could not have been worse. It occurred at the height of the debates over the Constitution, when Americans eagerly sought news from other parts of the country. Opponents of the Constitution accused Hazard of blocking their newspapers and their mail in a nefarious plan to secure ratification. Some of the Constitution’s supporters thought Hazard was obstructing communications as part of an evil plan to defeat ratification.

Hazard Is Fired

George Washington was among those upset. Upon being elected president, he refused to allow Hazard to continue as postmaster general. In fact, Washington failed to notify Hazard he was being replaced or even to respond to his letters. Hazard learned in the streets that he had lost his job.

Finding a new position proved a struggle. Hazard was forced to move from New York to Philadelphia. There, he entered the insurance business and was one of the founders of the Insurance Company of North America. He also returned to his plan of copying and republishing historical documents.

During the 1790s, after Herculean exertion, Hazard published two volumes of his Historical Collections. Each volume contained more than 600 pages of charters and other documents. They covered the period from the voyages of Columbus to the year 1664.

Relying on his knowledge of book publishing and of ancient Greek, during the first decade of the 1800s Hazard provided critical editorial assistance to Charles Thomson, the secretary of the former Continental and Confederation Congresses, in Thomson’s translation of the Septuagint. This was the first translation into English of the earliest extant version of the Bible.

The efforts of this learned, religious, and diligent man proved invaluable to an entire generation of American scholars. Today, we acknowledge Ebenezer Hazard as America’s first historical editor. We also should acknowledge him as an important American founder.

An earlier article on this American founder first appeared in Townhall.com.

The Founders as Mythology

The Founders as Mythology

Rob in Roxborough State Park Colorado
Rob in Roxborough State Park Colorado

Recently when commenting on how Americans view the Founding, an associate of mine observed that in many people’s minds the Founders had become mythological rather than historical figures. That is, many people routinely ascribe ideas and actions—both good and bad, wise and stupid—to them that have little to do with historical reality or even human probability.

A common example: Some commentators who profess to revere the Founders and may even claim they were divinely inspired, nevertheless also insist that they grossly breached their faith in proposing a new Constitution rather than amendments to the Articles of Confederation.

My associate’s observation induced me to recall how ancient Greek and Roman writers portrayed their gods. They frequently portrayed the gods as just, majestic, imperturbable, gracious, and wise. But they also told stories that depicted the gods as wicked, petty, jealous, mean, and stupid. To cite one example: Jupiter (Zeus) was pater deumque hominumque—the father of gods and men, the defender of justice, the guardian of the world. Yet he was also a multiple rapist who turned himself into a bull so as to lure a young girl (Europa) in service of his lascivious plans.

Obviously, such portrayals have nothing to do with historical reality. But they are different only in degree from some portrayals of the Founders.

On the one hand, we need to remember that the Founders—framers, ratifiers, and opinion-molders—were not a passel of hicks who, in the dismissive words of Professor Louis Michael Seidman, “thought it was fine to own slaves.” On the other hand, we need to remember that they were not gods either. They were very wise, educated, and experienced men—and in some cases, such as that of Mercy Otis Warren, women. Nearly all were honorable and believed that slavery was a violation of natural law. Their knowledge of human nature and politics enabled them to erect our system of checks and balances. Their knowledge of history enabled them, to a very great extent, to transcend their own time and circumstances. Their drafting skill enabled them to produce a beautiful document, whose phrases have real meaning—even if, as in the case of the Necessary and Proper Clause, those meanings are often technical in nature.

Yet because they were men, they were fallible, and because they lived in a particular time and set of circumstances, they had to make compromises. One of those, and the one most often used to bash them, was their accommodation with slavery: They were faced with the difficult choice of indulging their belief that slavery was wrong or creating a new form of government that all states might ratify. They chose the latter. It was a nasty choice, but it also was one that helped ensure that America did not become, like Europe, a collection of small countries incessantly warring against each other.

In treating the Founders therefore, we should take them as they were. No hagiography and no demonology, either.

A Response to Professor Seidman

A Response to Professor Seidman

RGN Montpelier '07Should we acknowledge that the U.S. Constitution is filled with “archaic, idiosyncratic and downright evil provisions,” and “extricat[e] ourselves from constitutional bondage” by cashiering the document?

“As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken,” argues Louis Michael Seidman, tasked with teaching constitutional law at the Georgetown University Law Center . And the Constitution, he asserts, is largely to blame.

The Constitution, he writes, was adopted by a “group of white propertied men who have been dead for two centuries, knew nothing of our present situation . . . and thought it was fine to own slaves.” The Framers acted illegally in drafting the Constitution because they exceeded their power. Moreover, “[n]o sooner was the Constitution in place than our leaders began ignoring it.” And ignoring it is often a good thing: FDR did it for example, and so did the Supreme Court when it banned school segregation.

Besides, “much constitutional language is broad enough to encompass an almost infinitely wide range of positions.” And while we should keep some parts of the Constitution—like regular elections and freedom of speech—the rest gets in the way of leaders who make considered judgments on the merits. We need to rely on other sources of legitimacy, he concludes, moving to an “unwritten constitution,” like that of Britain.

That such a judgment was rendered is less shocking than who rendered it. The judgment is not unique because there always have been American Tories—people who chafe at restraints on central power and would prefer a British-style government. In recent years, as political “progressives” have gradually lost the scholarly battle over constitutional interpretation, some have stopped pretending the Constitution means whatever they want it to, and have begun to trash the document itself. A controversial example was the Time Magazine cover essay of June 23, 2011. (See my response to that article here.)

But the source of the claim is more shocking, because it comes from one who has taught constitutional law for 40 years. And who should know better.

Did the Constitution cause our present “fiscal chaos?” Quite the contrary. The crisis has arisen not because we followed the Constitution, but because we have allowed federal officials to ignore it. In the 1930s, the Supreme Court announced that it would stop enforcing the Constitution’s limits on federal spending programs. Without meaningful spending restraint, Congress became an auction house where lobbyists could acquire new money streams for almost anything—a redundant health care program; a subsidy for an uneconomic product; or a modern art museum in Indiana.

It is hard to believe there would be a fiscal crisis today if federal spending had remained within the Constitution’s generous but limited boundaries.

Consider, by contrast, the record of the United States during the 140 years in which the Constitution’s limits on federal power were usually respected. During this period of limited government and great personal freedom, the United States became the most successful nation in the history of the planet. Inflation was low. The budget was usually balanced. The foundation of the modern economy was laid. It was a period of unprecedented innovation and unprecedented advances in health, life expectancy, and living standards. It saw the end of slavery and astounding progress for women and even for the most disadvantaged minorities. In other words, it was adherence to the Constitution, not disregard for it, that enabled America (in Professor Seidman’s words) to “grow and prosper.”

Professor Seidman seems to assume that politicians can be trusted to make “considered judgments” and act “on the merits,” and that the public does not need to impose outside constitutional restraints on their power (except, perhaps, through elections). The Founders were wiser. They knew that the entire history of humankind suggests the opposite—as, in fact, does the current fiscal crisis. If Mr. Seidman thinks the United Kingdom is a stronger, freer, less dysfunctional, and more prosperous country because of its unwritten constitution, he should live there for a while, as I have. Britain’s relative decline has been precipitous over the past century. Without the support of America, it is doubtful Britain would have survived as a free country.

Professor Seidman likes some parts of the Constitution. He’d keep those, and disregard the rest. Doing so, however, is inimical to the rule of law, which requires that we follow established rules until duly amended, whether or not those rules tickle our preferences.

Based solely on the assertions in his article, Professor Seidman appears to know little about the background of, and principles underlying, the document he is charged with teaching. The list of his historical inaccuracies and omissions is long. Following is merely a sample:

*          As part of an attack on the Founders, Professor Seidman repeats the ancient calumny that the Framers ignored limits on their authority by drafting a new instrument rather than merely proposing amendments to the Articles of Confederation. The truth is that when the authorizing commissions are read, not anachronistically, but in light of 18th century language and law, they show that 48 of the 55 Framers had authority to recommend a new document. Four of the remaining seven did not sign. One (Hamilton) subscribed in an individual capacity.

*          Those who adopted the Constitution, Professor Seidman tells us, were “white propertied men.” He is apparently unaware that the document was debated and ratified through one of the most democratic procedures conducted up to the time. All levels of society participated in the debate, and the electorate choosing delegates to the state ratifying conventions included (in some states at least) women, poor people, and free African-Americans.

*          He further attacks the Founders as men who thought it was “fine to own slaves.” In fact, the prevailing opinion among them was that slavery violated natural law, and was doomed to extinction. They backed up that opinion with action: In the 11 years between Independence and the Constitution’s drafting, eight of the 13 states had begun the process of emancipation, 10 had abolished the slave trade, and two others had restricted it. In urging ratification, the Constitution’s advocates, particularly in the North, emphasized that it might hasten the end of slavery.

*          Professor Seidman also writes that once the Constitution was adopted our leaders immediately “began ignoring” it. No one who has spent much time in early post-Constitution political debates can believe that. Those debates reveal much consideration of constitutional issues, and often a very high quality of discussion. Thomas Jefferson, for example (as Professor Seidman concedes), agonized over the constitutionality of the acquisition of Louisiana. He did not “ignore” the issue. Unfortunately, Jefferson had been in France during the Virginia ratifying convention, or he would have understood that the Constitution authorized territorial changes through the Treaty Power.

*          But what of Professor Seidman’s claim that the Alien and Sedition Acts of 1798 violated the First Amendment? Actually, the Sedition Act violated the Tenth, not the First (as then understood).  But a single, fiercely contested law is little evidence that leaders systematically “ignored” the Constitution.

*          “Who cares?” In this phrase, Professor Seidman dismisses the constitutional rule that revenue bills must originate in the House of Representatives rather than in the Senate. The Framers were better educated on the subject. The rule was suggested by both theory (the House would be more likely to reflect popular interests) and practice (long experience in the British Parliament). It remains today as a buttress against senatorial oligarchy.

*          Can Professor Seidman really believe that the Supreme Court decision abolishing school segregation had “no basis in the Constitution?” Perhaps it would help to examine the congressional debate over the 14th Amendment’s Equal Protection Clause—a provision that, unlike some others, was designed to respond to changing factual conditions.

*          It is odd that a constitutional law professor would erroneously define “originalism.” It certainly is not “divining the framers’ intent.” Originalism is adhering to the contemporaneous public meaning of the Constitution, and in some cases, the understanding of those who enacted it (the ratifiers, not the Framers). This is not an obscure concept; it is the same rule by which most legal documents are interpreted.

*          Professor Seidman states that it is “obvious” that “much constitutional language is broad enough to encompass an almost infinitely wide range of positions.” This can be “obvious” only to those unfamiliar with the contemporaneous meaning of key constitutional terms. To be sure, the Framers could draft a highly flexible phrase when they chose to do so, and in a few instances they did. But most of the Constitution is a reasonably precise document, relying on legal terms of art of understood content widely employed by 18th century scriveners.

Although it is true, as Professor Seidman states, that politicians have violated the Constitution, it is rarely true that we have been better off for it. The breaches have included incarceration of innocent citizens during World War II, ill-advised attempts to micro-manage the economy through monetary and regulatory policy, and unrestricted spending. We have lived to rue them all.

America performed brilliantly when constitutional limits were honored. As those limits have eroded, we have lost our edge: Economic growth has slowed, the civic fabric has frayed, and we have fallen into fiscal crisis. The fault, therefore, is not in the Constitution. It rests in politicians who disregard it and in scholars, jurists, and other citizens who encourage them to do so.

A Colonial Pamphlet Helps Show Why the Constitution’s Necessary and Proper Clause Granted No Power

A Colonial Pamphlet Helps Show Why the Constitution’s Necessary and Proper Clause Granted No Power

061712  RGN Thirlmere

Learn more: Hear a podcast on this subject.

As I have noted before (for example, here and here) pamphlets written in support of the colonial cause during the years 1763-1774 help us greatly in understanding the language of the Constitution. Unfortunately, most constitutional writers regularly overlook those pamphlets—one reason mistakes of constitutional interpretation are so common.

Most of the influential colonial pamphlets were written by distinguished lawyers. Among the authors were John Adams, Thomas Jefferson, Daniel Dulany, James Wilson, Alexander Hamilton, and John Dickinson. In these works, the authors explained the American vision of the rights of citizens and the prerogatives of the colonies within the British Empire.

The British ministry rejected that vision, which helped bring on the Revolutionary War. But after Independence Americans got the opportunity to write their own Constitution. They implanted much of the pamphleteers’ vision into our Basic Law—not surprisingly, since at least three of the Framers had been pamphleteers themselves (Wilson, Hamilton, Dickinson).

In addition to helping us understand the Founders’ view of government, the colonial pamphlets help us understand the meaning of particular words and phrases. They also illustrate the sources the Founders relied on for their ideas: the Bible, the Greco-Roman classics, English constitutional history, the history of the Netherlands, and so forth.

In an earlier post, I discussed the Town of Boston’s 1772-73 pamphlet. Another example is a brilliant 1774 production by a prodigy named Josiah Quincy, Jr. (also known as Josiah Quincy II). It was called Observations on the Act of Parliament Commonly Called the Boston Port-Bill; with Thoughts on Civil Society and Standing Armies.

The pamphlet is a miracle of classical and historical learning. When Quincy composed it, he was only 30 years old, but was already one of Massachusetts’ top attorneys. Quincy was a leader of the colonial cause, and had served as John Adams’ co-counsel in the celebrated “Boston Massacre” case. His essay’s principal purposes are to show that the parliamentary act shutting up the port of Boston was unjust, and that peacetime standing armies are inimical to free government.

I encourage readers to examine the pamphlet themselves. If you have studied the Constitution, you will find much that foreshadows it.

One example is the precise Second Amendment phrase “well regulated militia” (page 39). Another is the word “commerce,” used specifically as a synonym for “trade” (page 22), and not with the expansive meanings claimed by apologists for the modern monster state.

Quincy assails the Boston Port Act’s invalidation of existing contracts as a “post facto” law (page 11), illustrating the contemporaneous opinion that ex post facto laws could be civil as well as criminal in nature (an interpretation abandoned during the Constitution’s ratification fight). Another passage foreshadows the Constitution’s guarantee of due process of law (page 14). Still another implies that in using the phrase “natural born” the understanding is the English use of that phrase, not the international law usage (page 69). Yet another passage reflects the underlying constitutional value of “sympathy” between government and governed (page 28).

In addition, the essay contains numerous adages and warnings on government, such as the cost of employing too many public officials (page 62).

Perhaps the most interesting part of the pamphlet illustrates why, as has been documented extensively, the Founders understood the Necessary and Proper Clause (Article I, Section 8, Clause 18) to be a mere recital, and not an affirmative grant of power to Congress. At that point, Quincy was discussing the Boston Port Bill’s requirement that the Town of Boston reimburse the East Indian Company for the tea tossed into the harbor. Quincy pointed out (page 18-19) that it would be illegal for Boston to pay the Company, because another Parliamentary statute limited Town expenses to “maintenance and support of the ministry, schools, the poor, and defraying other necessary Town Charges.”

“Will any now say,” Quincy wrote, “that the monies appointed to be paid to the East-India [Company], come within the words of ‘necessary town charges?’ When did the town contract the debt, or how are they subject to it?”

Today we might read “necessary town charges” as including such a payment, but that was not what it meant at the time. When a phrase like “and other necessary charges” appeared in a legal document at the end of in a list of enumerated powers, it served only to clarify that power-wielder had authority incidental to the powers already listed—but not separate and additional authority. Under this statute, in other words, the town of Boston could not make payments unrelated to the listed purposes.

This is precisely the role the Necessary and Proper Clause plays in Article I, Section 8.

Had he lived, Quincy undoubtedly would played an illustrious part in our nation’s founding. Unfortunately, he died of tuberculosus about a year after publishing this great tour de force—only 31 years old. His son was to become president of Harvard University, and his second cousin, John Quincy Adams, President of the United States.