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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.”

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.

The Convention of States in American History

The Convention of States in American History

In this short essay, constitutional historian Rob Natelson thumbnails the three-centuries long history of “conventions of the states.”

When delegations from the states assemble in Phoenix, Arizona later this year, they will be basking in a long and rich American tradition.

As far back as 1677, British colonies in North America sent “commissioners” (delegates) to meet with each other to discuss common issues. These gatherings were essentially problem-solving task forces. That is, they were temporary assemblies charged with proposing solutions to prescribed problems.

During the colonial era, most conventions met in New York City, Boston, or Albany, New York: Albany was popular because it was close to the homes of the Iroquois tribes, who frequently participated. However, one of the most notable conventions occurred in Lancaster, Pennsylvania (1744).

The convention agenda was always set in advance. It sometimes involved common defense against hostile Indians or against French Canada. Often, the colonies convened to hammer out treaties with Indian tribes.

“Convention” was not the only name for these conclaves. Occasionally, they were called councils; more often congresses. (In the international practice of the time a “congress” was a diplomatic meeting of governments on equal terms.) . . . . .

For the entire history click here.

How We Know a National Amendments Convention Is a ‘Convention of the States’

How We Know a National Amendments Convention Is a ‘Convention of the States’

Most state legislatures have filed applications with Congress demanding a national convention for proposing constitutional amendments. Americans are asking just what kind of convention the Constitution requires.Nearly all experts believe an amendments convention is a “convention of the states”—the traditional term for a meeting in which representatives of state legislatures deliberate on the basis of sovereign equality. The rule at a convention of the states is that each state has an equal voice.

This would be a familiar procedure: There have been about 40 conventions of states in American history—although this one would be the first called to propose constitutional amendments under the authority of the Constitution itself.

Other commentators—predominately, but not exclusively, convention opponents—argue an amendments convention should consist of popularly elected delegates, perhaps allocated by population.

The Constitution itself merely refers to the assembly as a “Convention for proposing Amendments.” So we must look at history to understand how the Founders understood the term.

In an 1831 decision, the U.S. Supreme Court said an amendments convention is a convention of the states. My newly-issued research study confirms the Supreme Court was correct.

During the century before the Constitution was drafted, conventions among North American colonies, and later among states, met on average every three or four years. After Independence in 1776, the pace quickened: The Constitutional Convention of 1787 was the 11th interstate gathering in 11 years. All were assemblies of state delegations, operating as ambassadors from their respective states.

The delegates were officially called “commissioners” and the meetings dubbed either “conventions of the states” or by some well-recognized synonym.

The fact that the founders knew only of the “convention of the states” model of interstate meeting suggests strongly they intended an amendments convention to work the same way. The new study shows how the “convention of states” approach fits within the Constitution they drafted and approved.

Additionally, the study collects numerous documents in which Founders specifically labeled an amendments convention a “convention of the states.” All these documents originated when Americans still were debating the new Constitution. Remarkably, everyone seems to have shared the view that an amendments convention would be a “convention of the states,” irrespective of whether he favored the Constitution.

For example, in New York legislative debates, two lawmakers referred to an amendments convention as a “convention of the states.” One was John Lansing Jr., who had served as a framer in Philadelphia. Similarly, in South Carolina, another framer, Charles Cotesworth Pinkney, referred to the amendments convention in much the same way.

Newspaper articles used the same term. Leading founders such as George Washington, James Madison, and Alexander Hamilton made comments that reveal their assumption that an amendments convention is a convention of the states.

Perhaps most persuasive of all are the references to “convention of the states” in state legislative resolutions and other government documents. During 1788 and 1789, several state legislatures debated whether to formally apply to Congress for a convention, primarily to obtain a bill of rights. The very first application, passed by the Virginia legislature, used the term “convention of the states,” and the second (New York’s) used a common synonym.

The study observes: “Within a few months amid the ratification debates, five states in different regions of the country—three in favor, one against, and one neutral—issued seven official documents identifying an amendments convention as a convention of the states.”

For a such a gathering, the state legislatures decide how many commissioners to send to the convention and how they are chosen. Previous experience suggests state legislatures will select most commissioners. That ensures the commissioners are experienced in public policy and official drafting.

When the convention is called to order, each delegation will have an equal voice. Although the assembly theoretically could change that rule, no convention of states ever has.

If delegations from all 50 states attend, then 26 will be able to propose an amendment. Their proposal will, however, be merely a proposal. To become part of the Constitution, three-fourths of the states (38) must approve, thereby assuring the amendment has strong popular support.

This article originally appeared in Townhall.com

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

Recent controversy has centered on President Trump’s businesses accepting payments—such as payment for space in the Trump Tower—from foreign governments. Several prominent legal commentators have begun a lawsuit claiming that the president is violating the Constitution’s Foreign Emoluments Clause by accepting “emoluments” from foreign governments.

That Clause, which is Article I, Section 9, Clause 8, provides as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, emolument, Office, or Title of any kind whatever from any King, Prince, or foreign State.

The term “emolument” appears three places in the Constitution. Article I, Section 6, Clause 2 prohibits a member of Congress from being appointed to an office “which shall have been created, or the Emoluments whereof shall have been encreased” during his current congressional term. Article II, Section 1, Clause 7 prohibits the president from accepting any emolument other than his salary from the federal government or from any state. Some argue that President Obama violated that provision by accepting interest payments on government bonds while president.

In a new scholarly article I examine the Constitution’s use of the word “emolument.” I find that during the Founding Era the word often was used in a sense wide enough to cover both Trump’s and Obama’s conduct. However, I also find that there were two common narrower meanings, and that the Constitution adopted one of those. In the Constitution, the term signifies “compensation with financial value, received by reason of public employment.” Thus, neither Trump nor Obama received unconstitutional “emoluments.”

There are at least two other issues concerning the Trump case that the article does not address:

1. Is he covered by the Foreign Emoluments Clause at all? It applies to those holding an “Office . . . under” the United States. There is a respectable view that this particular formulation does not apply to the president, but only to appointed officers. This argument holds that the framers meant to include the president, they used other phrases, such as “officer of the United States.”

2. If a payment from a foreign government is not an emolument, could it still be an unconstitutional “present?” This obviously depends both on the Founders’ understanding and one the circumstances surrounding the payments. I may investigate this question in the near future.