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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.

Where Congress’s Power to Regulate Immigration Comes From

Where Congress’s Power to Regulate Immigration Comes From

Introduction. Earlier this year, a law journal published an exchange between two respected law professors—a conservative and a libertarian—about whether the Constitution authorizes Congress to regulate immigration. (The Constitution does not mention immigration except to say that Congress cannot ban it before 1808.) The conservative said “Yes,” and supported his position with some extremely liberal (!) readings of parts of the Constitution. The libertarian said, “No”—that except in special circumstances Congress could not restrict immigration (although the states could).

Surprisingly, both contributors missed the actual source of Congress’s immigration authority: the power “To define and punish . . . Offences against the Law of Nations”) (Article I, Section 8, Clause 10).

The law journal already had been published, so it was too late to join the discussion on its pages. Accordingly, I wrote an article in The Hill detailing why the “Define and Punish Clause” applies to immigration. The libertarian replied on the pages of the Volokh Conspiracy, a Washington Post blog to which he regularly contributes, and for which I have occasionally written as well.

I thought this issue was worth a full explanation of why the Define and Punish Clause covers immigration, because its applicability to immigration is not well known, even among legal experts. Accordingly, I prepared the essay below for readers interested in immigration issues. As should be apparent from this essay, I am NOT taking a stand on immigration policy, just on an issue of constitutional interpretation. This essay appeared in Josh Blackman’s Blog.

Links to some of the earlier writings appear in the essay.

Why the Define and Punish Clause Grants Congress Power to Regulate Immigration

By Robert G. Natelson

            In a recent article in The Hill, I wrote that the Constitution’s grant to Congress of power “To define and punish . . . Offences against the Law of Nations” confers authority to restrict immigration. Professor Ilya Somin has responded and argues the contrary.

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

“The Law of Nations” was the usual 18th century term for international law. Most of the law of nations governed how nations interacted with other nations. However, some aspects governed how they interacted with foreigners and a few aspects—such as the law merchant—regulated how citizens of different countries interacted with each other.

The law of nations was based on natural law, custom, and international agreements. However, the rules were not always clearly defined, and they were not self-executing. For this reason, legislatures adopted implementing statutes. Examples of such statutes were those protecting safe-conduct passes from disrespect and foreign ambassadors from insult. The Define and Punish Clause granted Congress authority to adopt implementing measures.

The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Professor Somin acknowledges that “the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit.” But he notes that the mere fact that the law of nations authorized a sovereign to adopt legislation did not render the legislation part of the law of nations. For example, the law of nations recognized a sovereign’s prerogative to enact statutes forbidding murder. However, most murders were not offenses against the law of nations. Moreover, if it were true that any statute consistent with international jurisprudence were part of international jurisprudence, the Define and Punish Clause would empower Congress to adopt any ordinary police legislation permitted by international law. Such a sweeping grant of power to Congress would be inconsistent with the Founders’ design.

On these points Professor Somin is correct.

On the other hand, some domestic statutes surely did define offences against the law of nations. An example is a statute prohibiting a citizen from insulting or impeding a foreign ambassador. Thus, to state that the Define and Punish Clause does not authorize all domestic laws does not answer the question of which domestic laws it does authorize. Is a statute restricting immigration in the class with ordinary murder laws or in the class with protections for ambassadors? Immigration limits have international implications that ordinary murder laws do not have. So reasoning would seem to place immigration restrictions in the “law of nations” category.

But questions of constitutional meaning cannot be answered through pure reason, however acute. Nor does the constitutional answer lie in what we moderns think international law is or should be—a mistake into which Professor Somin’s essay slips once or twice.

At least to an originalist who follows Founding-Era norms of interpretation, the meaning of a constitutional term is fixed by the understanding of those who ratified it or, in absence of sufficient coherent evidence on that subject, by the original public meaning. When, as here, the constitutional debates provide little relevant evidence on the sense of a legal term, our best evidence of its meaning may be Founding-Era jurisprudence. (I say “may be” because contemporaneous congressional and state records are sometimes more helpful.)

To a modern reader, some of the classifications adopted by 18th century jurisprudence appear arbitrary. Yet those classifications often serve to define constitutional meaning. The framers treated bankruptcy and commerce separately, despite their interrelated nature, because they were distinct legal categories. Similarly, the legal phrase of “to regulate Commerce” encompassed travel by ship but not (most) travel by foot. So under the Constitution’s original legal force, the power to regulate commerce included boat travel from Canada but not (usually) walking across the border.

Helpful to grasping international law jurisprudence as the Founders understood it are three treatises they held in high esteem: Samuel Pufendorf’s 17th century work, Of the Law of Nature and Nations, and two 18th century works: Emer de Vattel’s The Law of Nations and Blackstone’s Commentaries.

Vattel wrote that the law of nations derived from the natural law applicable to individuals, as modified by convention and by the special circumstances of sovereigns: “[C]onsequently, the law of nations is originally no other than the law of nature applied to nations” (emphasis in original). Indeed, both Vattel and Pufendorf frequently drew upon rules of natural law applicable to individuals to deduce or justify substantive rules of international law. By way of illustration, here is how Pufendorf justifies immigration restrictions:

The Case is somewhat like that of a private Man, who in his House or Gardens, possesses some rare Curiosity, or other valuable Sight; such an one does not apprehend himself tied freely to let in all Spectators . . . And this seems the more reasonable, because the Grounds of prudent Caution and Suspicion are so numerous. . . .

And farther, that it seems very gross and absurd, to allow others an indefinite or unlimited Right of traveling and living among us, without reflecting either on their Number, or on the Design of their coming; whether supposing them to pass harmlessly, they intend only to take a short view of our Country, or whether they claim a Right of fixing themselves with us for ever. And that he who will stretch the Duty of Hospitality to this extravagant Extent, ought to be rejected as a most unreasonable, and most improper Judge of the Case.

As to our main Question, it is look’d on by most as the safest way of resolving it, to say, That it is left in the power of all States, to take such Measures about the Admission of Strangers, as they think convenient . . . .

I suppose Professor Somin might respond that Pufendorf was merely asserting the power of nations to exclude foreigners—that Pufendorf was not saying the intrusion violated the law of nations. But this does not seem justified by the context. Pufendorf was engaged in the common methodology of using rules of domestic law to deduce rules of international law. Domestic law not only gives permission to a householder to decide to exclude. Domestic law also makes it an offense to disregard the householder’s decision. I see no reason why international law would not encompass both the decision to exclude and unauthorized disregard of that decision. As noted earlier, immigration laws are not purely domestic in their effect; they have important international implications.

Blackstone understood this passage the same way I do, and for purposes of constitutional interpretation Blackstone’s exposition matters a great deal. Explicitly relying on this passage, Blackstone wrote, “Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. (emphasis added).” To Blackstone, then, the law of nations does not merely grant a sovereign the right to exclude. A violation is itself an offence against the law of nations.

Now we turn to Vattel’s treatise. It consists of four books. The first was entitled “Of Nations considered in themselves.” A major theme of this first book is the derivation of rules of governance from natural law principles. Despite the title, the book goes beyond questions of internal governance to deduce conclusions about the law of nations. Among those conclusions:

*          “A nation or state has a right to every thing that can help to ward off imminent danger;”

*          nations may limit or ban imports;

*          they may refuse to trade with others; and

*          they may restrict emigration and immigration, taking into consideration a range of factors, including available land, health concerns, avoiding religious strife, and factors of safety and culture. Indeed, the nation “has a right, and is even obliged, to follow, in this respect, the suggestions of prudence.”

Now, these seem like rules of international law to me. And in respect to immigration at least, they go beyond mere permission: They extend to obligation—for a sovereign “is even obliged” to legislate according to likely consequences.

Vattel further supports the conclusion that the law of nations includes the substance of immigration statutes. In this book, he mentions a rule among some European states denying citizenship to foreigners. Vattel characterizes the rule—not merely the authorization—as “the law of nations, established there by custom.” Professor Somin observes that this custom regulated citizenship rather than immigration. But that distinction actually cuts against his argument: If even an internal citizenship rule dealing with foreigners—a rule central to the life of a polity—is part of the law of nations, then a limit on foreigners crossing the border is one a fortiorari. (As Professor Somin correctly states, Vattel didn’t like the custom of denying citizenship to foreigners. But that is wholly beside the point.)

Yet, perhaps one might object that Vattel’s first book is really only about “Nations considered in themselves,” and that we should therefore be cautious about treating its conclusions as part of the law of nations.

So let us examine Vattel’s second book. Its title tells us it is wholly about the law of nations: “Of a Nation Considered in its Relation to Others.” (The third and fourth books are about war and peace, respectively.) Here are some passages from the second book, presented in order of appearance:

As every thing included in the country belongs to the nation—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things,— if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property.

 * * * *

Since the least encroachment on the territory of another is an act of injustice . . . the limits of territories ought to be marked out with clearness and precision.

 * * * *

We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign: for a foreign nation can claim no right in it.

    * * * *

The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country.

 * * * *

Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.

Perhaps one might rejoin, “Here again, Vattel says only that the law of nations permits sovereigns to restrict immigration; he does not say that violations are part of the law of nations.” On the contrary, though, Vattel does more than describe the prerogative of the sovereign to exclude. In this book (remember: focusing on international norms) Vattel also prescribes the duty to obey:

*          “We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign;” and

*          “[E]very one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.”

Even if these passages of obligation were absent, I don’t think it is the most natural reading of the text to infer that the right to enact a restrictive statute is a component of international law but violation of the statute is not. I doubt many Americans reading Vattel during the Founding Era would think a book entitled “Of a Nation Considered in its Relation to Others” was telling them, “The law of nations authorizes restrictive immigration statutes but is wholly agnostic about their violation.” Certainly Vattel never says that.

One last point—not fully germane, but worth mentioning. Professor Somin writes, “But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them.” Vattel, at least, may well have disagreed:

If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself.

* * * *

Finally, there is another case where the nation in general is guilty of the crimes of its members. That is when by its manners and by the maxims of its government it accustoms and authorizes its citizens . . . to make inroads into neighboring countries.

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