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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.”

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.

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.

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.

 

John Dickinson’s ‘Farmer’ Letters on Their 250th Anniversary

John Dickinson’s ‘Farmer’ Letters on Their 250th Anniversary

This article originally appeared in the Washington Times.

This year, 2017, marks the 250th anniversary of one of the most influential series of writings in American history: John Dickinson’s Letters from a Farmer in Pennsylvania, the first of which appeared in 1767.

These “Letters”—12 newspaper op-eds later collected in book form—asserted the colonial cause against imperial British overreach and helped to lay the groundwork for the U.S. Constitution drafted two decades later. The letters also presented important ideas about resisting usurpation.

John Dickinson (1732-1808) did not sign the Declaration of Independence, but in other respects, he was an American Founder of the first rank. With homes in Delaware and Pennsylvania, he served both states. Pennsylvania sent him to the 1765 Stamp Act Congress and, after publication of the Farmer letters, to the Continental Congress in 1774. Dickinson authored most of those assemblies’ public pronouncements. He also chaired the congressional committee that drafted the Articles of Confederation.

During the Revolution, Dickinson served two stints in the American armed forces, after which Delaware returned him to Congress (1779). In 1781, he was elected president (governor) of Delaware. The following year, he was elected president of Pennsylvania. In 1786, representing Delaware, he chaired the Annapolis Convention, which recommended a constitutional convention the following year. Delaware sent Dickinson to the latter meeting, where he impacted the results in ways not fully understood until his convention notes were rediscovered a few decades ago.

Dickinson wrote the Farmer letters in response to the British Parliament’s Townshend Acts (1767). (The Townshend Acts imposed duties on goods imported to America.) They explained why the Townshend duties were improper and how and why Americans should resist them.

The Farmer letters took America by storm. They were reprinted in Britain and Europe. In accordance with the Founding-era understanding of freedom of the press, Dickinson had written anonymously, but the authorship soon became known. Dickinson eventually became one of the most famous Americans in the world, second only to Benjamin Franklin.

The letters maintained that the colonists, as British subjects, had the right not to be taxed without the consent of lawmakers elected by them. They also contended the Townshend duties were “taxes” because they were imposed to raise revenue rather than to regulate behavior. Thus, only the colonists’ elected legislatures could impose them on Americans. Parliament, where Americans were unrepresented, could not.

Dickinson’s case was largely legal and constitutional, but he supported it with appeals to natural law and human welfare. “We cannot be happy without being free … 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,” Dickinson wrote.

In furtherance of the same principle, Dickinson worked two decades later to ensure the Constitution prescribed that revenue bills could originate only in the House of Representatives.

The Farmer letters went well beyond asserting the case against taxation without representation; they also helped clarify American constitutional thinking on other questions, including: Which government responsibilities should be exercised centrally and which locally?

Dickinson argued the central government should regulate commerce among the political units of the British Empire, but individual colonies should control civil justice and other domestic matters. In this respect, the letters foreshadowed the split between federal and state powers embodied in the Constitution 20 years later. Early in the convention, Dickinson advocated dividing federal and state authority by “enumerating” federal powers. His fellow delegates eventually adopted the idea.

The letters defended the existence of the British House of Lords by observing the nobility needed a separate legislative chamber to protect them against the king and the commons. At the Constitutional Convention two decades later, Dickinson persuaded his fellow delegates to extend similar protections to the states. He successfully advocated the United States adopt a Senate that represents the states equally and is composed of legislators who are selected by state legislatures for long, staggered terms.

The Farmer letters further examined how a free people should respond to governmental usurpations. Dickinson recommended opposing small usurpations immediately to prevent them from acquiring the force of precedent. “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep,” he wrote.

But Dickinson also emphasized opposition should be carefully calibrated, avoiding both under- and over-reaction. Violence should never be the first step. Citizens should begin by petitioning for redress. If that proved unsuccessful, the next resort was lawful resistance, followed by peaceable civil disobedience.

Dickinson, like other Founders, emphasized the need to protect liberty by frequently resorting to “first principles.” This 250th anniversary offers Americans an opportunity to do just that.