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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 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.”

Fourth in a Series: John Dickinson’s Contributions to the Constitution

Fourth in a Series: John Dickinson’s Contributions to the Constitution

This is the fourth 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.

John Dickinson believed the passions could be the source of evil, but “[d]uly governed, they produce happiness.” Indeed, “[t]he due regulation of the affections [emotions] is the perfection [completion] of man’s character.” One achieved “due regulation” through well-structured societal institutions, including constitutional institutions: “The best foundations of this protection, that can be laid by men, are a constitution and government secured, as well as can be, from the undue influence of passions either in the people or their servants.” (Observe the phrase “undue influence,” a concept common in fiduciary law.)

Dickinson’s 1764 speech to the Pennsylvania assembly showed he understood the difference between constitutions and ordinary legislation. The role of a constitution was to lay down procedures for managing the rights and powers citizens contributed to the central authority: “[A] constitution is the organization of the contributed rights in society.” A good constitution featured mechanisms to maximize human advantages and minimize disadvantages. It encouraged good results and discouraged bad ones—the “cultivation of virtues and correction of errors.”

Dickinson was in Philadelphia for nearly the entire convention, although illness apparently caused him to miss some of the proceedings. Notes taken by James Madison and others, as well as Dickinson’s own notes (not recovered until 1983) reveal a significant impact on the framers’ deliberations.

Dickinson’s views were more centralizing than those of other small state delegates, such as New Jersey’s William Paterson. Yet they were more “federal” than views of nationalists such as Madison and Alexander Hamilton. Dickinson spoke for the “preservation of the States in a certain degree of agency [action],” but was willing to go much farther than those who wished merely to amend the Articles. Thus, he pressed for an enumeration of federal powers two months before the Committee of Detail adopted one. The ultimate federal/state balance was much closer to his ideals than, for example, to the ideals of Madison, the putative “father of the Constitution.”

The list of constitutional provisions impacted by Dickinson is a very long one. Consider the Great Compromise by which Senators were allocated by state and Representatives by population. As Dickinson hinted in his ratification-era Fabius letters, he had promoted a formula of this sort long before the other delegates acceded to it.

Dickinson sponsored the resolution that allocated at least one Representative to each state. In his draft plan for a constitution, he inserted the first rudimentary version of the Necessary and Proper Clause. (It would have authorized Congress to “pass Acts for enforcing” other congressional laws.) Amid debate over whether the Constitution should create a federal judiciary below the Supreme Court, he suggested the compromise whereby Congress received power to decide the issue. Despite misgivings, he made the motion to permit the president to be impeached. An opponent of the slave trade, he eventually helped broker the compromise whereby the trade was left untouched for several years, with power in Congress to abolish it thereafter.

Of course, he did not always get his way. He initially favored allocating members of the House of Representatives by wealth and tax contributions rather than by population. Eventually, he yielded to the convention’s conclusion that population generally was a fair proxy for wealth. The exception to the link between population and wealth was slavery, because of the lower productivity of slaves compared to freemen, white or black. The three-fifths compromise was the convention’s effort to quantify the difference, but Dickinson unsuccessfully opposed it.

Perhaps his most notable contributions pertained to the structure of the Senate. He suggested terms of office both staggered and long—although his initial preference was for seven years rather than six. He proposed that the Senate equally represent the states and that Senators be selected by the state legislatures. He sought to adapt British precedent to American conditions: Just as the House of Lords was necessary to protect the nobility and the royal veto to protect the Crown, the Senate would protect the states. Dickinson could look simultaneously back to the past and forward to the future.

This faculty surfaced again during the debate over the Origination Clause. In British parliamentary practice (adopted in modified form in some of the new state constitutions) all money bills originated in the Commons. The Lords could approve or disapprove them, but could not amend them. In conjunction with Virginia’s Edmund Randolph, Dickinson successfully fought for a requirement that all revenue bills, but not all money bills, arise in the House of Representatives, with the Senate enjoying power to amend.

Some delegates believed limiting revenue origination to the House was irrational, and they buttressed their opposition by reciting difficulties experienced in a few states with origination clauses in their recently-adopted constitutions. Madison in particular launched a convoluted attack against an origination rule.

Dickinson’s response to Madison was his most famous speech of the convention. This is the version reported by Madison himself:

Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. . . . And has not experience verified the utility of restraining money bills to the immediate representatives of the people. Whence the effect may have proceeded he could not say; whether from the respect with which this privilege inspired the other branches of Govt. to the H. of Commons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted. Shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject. . . [A]ll the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repress. and these prejudices shd. never be disregarded by us when no essential purpose was to be served. When this plan goes forth, it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shibboleth among its adversaries. Eight States have inserted in their Constitutions the exclusive right of originating money bills in favor of the popular branch of the Legislature. Most of them however allowed the other branch to amend. This . . . would be proper for us to do.

Here was a statement of Burkean conservatism three years before Burke’s Reflections on the Revolution in France.

As sometimes happened during Dickinson’s career, his colleagues rejected his proposal at the time—only to adopt it later.

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

This is the last 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.

Ill-health motivated John Dickinson to leave the federal convention a day early. Before departing, he instructed his friend and Delaware colleague, George Read, to affix his signature to the document. There are, therefore, 39 signatures to the document but only 38 men physically signed.

In early 1788, Dickinson perceived that ratification momentum was slowing. Accordingly, he composed for publication nine letters written under the pseudonym, “Fabius.” The Letters of Fabius were well-received and widely reprinted.

Unlike The Federalist or the “Aristides” essays of Alexander Contee Hanson, Fabius made no attempt to provide a comprehensive overview of the Constitution. The letters focused primarily on answering the Antifederalist contention that the Constitution was too “high-toned,” and that its adoption would lead to aristocracy. If the reader reviews the Dickinson speech reported in my last post, he or she will see that Dickinson had anticipated this objection.

Fabius centered on a two-fold response. First, the rules governing the House, Senate, and president assured popular control. House members would be elected directly to short terms, and one third of Senators would be elected indirectly every two years. The president would be chosen by a method impervious to corruption; and although he enjoyed a veto, it was not absolute. The British had expanded and retained their liberties with far fewer democratic guarantees.

Second, freedom would be preserved by the confederal or federal (the words then were synonymous) nature of the system. In the original social compact, citizens donated certain rights or powers (words also then largely synonymous) to a central authority so as to protect retained rights/powers. Similarly, in a confederation, member states contributed rights/powers to a central authority so as to protect their remaining rights/powers.

But just as citizens are bound to be ever jealous of their rights and to check government accordingly, so also would the states be obligated to protect their reserved powers. “America is, and will be, divided into several sovereign states, each possessing every power proper for governing within its own limits for its own purposes, and also for acting as a member of the union.” Any states that allowed the federal government to interfere in their sovereign jurisdiction would be guilty of a breach of trust, for the “trustees or servants of the several states” were obliged to protect the authority citizens had placed in them. If state officials lose ground to the federal government, Dickinson maintained, “It will be their own faults.”

In addition to pressing his twofold argument, Dickinson made other points. One was the disadvantages of a confederation in which the central government had insufficient power. Dickinson cited both the Articles of Confederation and the fracture of two ancient Greek federations as examples. He also offered a positive case study: the 1707 union of England with Scotland. After reciting dire pre-union Scottish predictions his readers knew proved to be false, Dickinson identified the union’s benefits: the cultivation of virtues and correction of errors; protection for the lower classes; improvements in agriculture, science, arts, trade, and manufactures; the rule of law; peace and security at home, and increased respectability abroad. Amid the enjoyment of these benefits, the Scottish Church and laws, courts and judicature had remained established and secure.

A well-balanced confederation rendered all its members stronger. In modern terms, it reduced state shirking and free riding. Further, as in the human body, “A stroke, a touch upon any part, will be immediately felt by the whole.” A diseased member of the body severed from the rest could not recover, while one remaining connected could be saved.

Confederation was Dickinson’s answer to Montesquieu’s lament that a large territory cannot be governed by republican forms, and that attempting to do so resulted in fragmentation or tyranny. Confederation, said Dickinson, would ensure that government was effective throughout American territory while still checking the urge to centralize. No confederation had ever featured the protections contained in the Constitution. If they proved inadequate, the Constitution provided yet another response: a method for adopting “amendments on the authority of the people.”

* * * *

The author of Fabius was nearing the end of contemporaneous life expectancy, but in the event he was to live another two decades. During that time he maintained a large correspondence, including with Thomas Jefferson, who even as president always answered his letters.

In 1791-92, Dickinson served as president of the Delaware state constitutional convention, and briefly as a state senator thereafter. He wrote several articles and pamphlets, including new Fabius letters arguing for a pro-French foreign policy.

Most of his remaining life, however, was spent in retirement. He died in 1808, age 75.

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.