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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.

The Supreme Court Uses Magna Carta to Curb Federal Property Grabs

The Supreme Court Uses Magna Carta to Curb Federal Property Grabs

041410 Rob Natelson-2

This article was first published at CNSNews.

The Fifth Amendment provides that “private property” shall not “be taken for public use, without just compensation.” When I wrote my book, The Original Constitution, I had to address the question of whether the Fifth Amendment phrase “private property” referred only to real estate or whether it included movable goods and other personal property.

The answer is not clear from the text, because the historical record shows that in another part of the Constitution (Article IV, Section 3, Clause 2) the word “property” refers only to land.

Accordingly, I canvassed the history relevant to “takings.” I found an Anglo-American tradition of compensating for seizures of personal property that extended back to Magna Carta and continued to the time the Constitution was drafted. I concluded, therefore, that the Fifth Amendment protected a right to be compensated for all property taken.

This past week, the U.S. Supreme Court reviewed the same record and arrived at the same result. In Horne v. Department of Agriculture, the Court ruled that when the federal government required farmers to turn over a large share of their raisin crop to the government in exchange for the “privilege” of selling raisins, it had to compensate for the taking.

Interestingly enough, all nine justices appear to have agreed on that point. Their disagreements extended to other, technical points of takings law and procedure.

The Horne case provides us with at least two takeaways. First, the Court’s opinion offers an insight into federal actions that one might describe as downright tyrannical. The case arose because the Horne family of raisin farmers was fined for failing to comply with a federal regulation—the Raisin Marketing Order—issued under a New Deal-era statute.

The Raisin Marketing Order had absolutely nothing to do with public health or safety. Rather, it was part of a program designed to increase the price of raisins to consumers.

In one of the two years reviewed by the Court, the feds seized 47 percent of all the raisins grown in the United States. In the second year, they seized 30 percent. The feds disposed of the raisins as they pleased—selling some and using the proceeds to subsidize exporters; refunding some proceeds to farmers one year, but not the next; and keeping the rest for “administration.”

When the Horne family refused cooperate with this abomination, the government fined them nearly $700,000 and dragged them through the judicial system for over ten years! If more people were aware that the government was acting that way, we would have a very different government.

The second takeway is how the case highlights the enormous debt our constitutional system owes to Magna Carta—the venerable English Medieval charter whose 800th birthday is being celebrated this year. Chief Justice Roberts’ opinion explained how Magna Carta offered protection against uncompensated takings, thereby embedding the principle of compensation in Anglo-American jurisprudence. Justice Roberts did not mention another important fact: that Magna Carta granted this protection not only to the nobility, but to all free persons and, to some extent, even to serfs.

The kind of “pay to play” extortion inherent in the government’s Raisin Marketing Order was a major reason behind Magna Carta. Like the federal government, King John demanded money from innocent people before they could do things they had the right to do anyway. Magna Carta took a strong stand against that kind of extortion.

Maybe it’s time for modern Americans to take that stand as well.