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What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

The previous installment collected founding era evidence on whether presidential electors were to control their own votes. The evidence included dictionary definitions, existing practices, and the records of the Constitutional Convention.

This installment continues the discussion of founding era by collecting material from the public debates on whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. Comments from those debates generally show that the ratifiers understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted statement from the public debate is from Alexander Hamilton’s Federalist No. 68:

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 such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

This is an important statement. However, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton, for that matter—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence.

Some of this material consists of comments stating merely that the electors—rather than anyone else—would decide how to vote. In other words, they assume the electors would remain independent.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letter, John Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .”

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.”

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And in North Carolina Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

A final point: When crafting the Electoral College, the framers were careful to minimize opportunities for collusion, intrigue, or “influence.” As James Iredell observed in the extract quoted above, one element of the framers’ plan was to allow Congress to appoint a day for appointment of electors and another day for voting. In each case, however, “the Day shall be the same throughout the United States.” Article II, Section 1, Clause 4.

In 2016, the uniform day for the appointment of electors established by Congress was November 8. But Colorado authorities removed an elector and appointed in his alleged successor on December 19—manifestly not the same day as November 8.

Not only did this violate the uniform day rule, but it was a classic example of the kind of political maneuvering the rule was designed to prevent.

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.

First In A Series: John Dickinson Comes Into Prominence

First In A Series: John Dickinson Comes Into Prominence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 support 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.”

Third in a Series: John Dickinson During the Continental and Confederation Periods

Third in a Series: John Dickinson During the Continental and Confederation Periods

This is the third 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.

In 1774, John Dickinson was elected to the First Continental Congress. As he had in the Stamp Act Congress, he served as principal drafter of public statements. The following year he was returned to the Second Continental Congress, where he again served as principal drafter. He was the primary author of, among other papers, two petitions to the Crown and The Declaration of Causes and Necessity for Taking up Arms. Moreover, he chaired the congressional committee that drafted the Articles of Confederation: Our oldest draft of the Articles is in his handwriting.

Throughout this period he tried to steer a middle course between submission and rebellion. He was a firm believer in moderation, which he once called “a virtue, and the parent of virtues.” Another member of Congress, Thomas Jefferson, wanted to proceed more vigorously. In his Autobiography Jefferson relates a story pertaining to the Declaration of Causes and Necessity for Taking Up Arms and the second petition to the Crown, the Olive Branch Petition. The anecdote reveals how most of Dickinson’s colleagues perceived him:

I prepared a draught of the Declaration committed to us. It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements. He was so honest a man, & so able a one that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last 4 paragraphs & half of the preceding one. We approved & reported it to Congress, who accepted it. Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment. The disgust against [i.e., distaste for] this humility was general; and Mr. Dickinson’s delight at its passage was the only circumstance which reconciled them to it.

This respect for Dickinson was not universal. John Adams, one of Congress’s leading hotheads, described him as “delicate, and timid” and representative of people of “great Fortune and piddling Genius.”

By the summer of 1776, Dickinson realized Independence was inevitable. He was certain, however, that publicly declaring it was premature. His July 1 speech in opposition to the Declaration, of which we have notes but not the text, shared with his 1764 Pennsylvania assembly oration a careful balancing of risks, probabilities, and benefits. Like his other productions, the July 1 speech was punctuated with sound bites. Thus, of his countrymen, he avowed, “I had rather they should hate me than that I should hurt them,” and he characterized advocates of an immediate declaration as wanting to “brave the storm in a skiff made of paper.”

A modern American may find it difficult to sympathize with Dickinson’s arguments against Independence. But a historian finds it difficult to disagree with all of them. Several of Dickinson’s predictions proved entirely accurate. One was that only American military successes, not the Declaration, would bring France into the war. Unfortunately, Dickinson’s prediction that his stance would destroy his popularity also proved accurate.

Dickinson’s speech against Independence, like his opposition to the 1764 Galloway-Franklin charter plan, illustrates the man’s enormous moral courage. There is no record—and I am not the first to make this observation—that John Dickinson ever backed down in the face of popular opposition when an issue was important.

When it became apparent that a majority of states in Congress would approve the Declaration, Dickinson remained a team player. He and Robert Morris withdrew so the vote could be unanimous. Unlike most in Congress, moreover, Dickinson served two stints in the Revolutionary armed forces.

Another insight into his character is offered by his 1781 decision to free his slaves. Most of the Founders opposed slavery. But Dickinson was one of the few to free his own slaves during his lifetime.

Dickinson’s loss of popularity kept him from political office for about three years. His political comeback began in 1779, when Delaware returned him to Congress. Two years later he was elected president of that state, and in 1783 president of Pennsylvania. He was re-elected to two additional annual terms, thereby serving the constitutionally-permitted maximum.

In 1786, he represented Delaware in the Annapolis Convention, and was elected president of that body. The Annapolis Convention, of course, was the assembly that recommended to the states a wider federal convention in Philadelphia the following May. Virginia (not Congress, as commonly claimed) responded by formally calling the Philadelphia conclave.

Delaware sent Dickinson to Philadelphia as the head of a five-man delegation. In that capacity he impacted the results significantly.