Founding Father John Dickinson and US Constitutional Crisis under Donald Trump
Quenby Wilcox
Washington 'Cave-dwelling' Dowager, Deposed Socialite Who is Highly Displeased with the Democrats AND Republicans & current State of Affairs in Our Nation's Capitol
The Founding Fathers of the USA had many concerns, and heated debates, over structuring the US government and the checks-and-balances necessary between the executive, legislative, and judicial branches—constantly drawing on history and failures of the Greeks and Romans. One of the most influential, but most forgotten Founding Father was John Dickinson. And, although he was the only Founding Father who did not sign the Declaration of Independence (not supporting separation from, or war with, the British Crown), he was instrumental in producing the rhetoric and legal argumentation for the Articles of Confederation (1771/1781), as well as the US Constitution (1787/1788)—as well as the US Revolution itself. Historian Robert G. Natelson provides insight into Dickinson’s contribution to the creation of the United States of America in his article “The Constitutional Contributions of John Dickinson,” Penn State Law Review, Vol. 108:2,
The fact that John Dickinson refused to sign the Declaration of Independence perhaps explains why he is less celebrated than many other Founders. The neglect is unjust. There is the point, after all, that Dickinson was no Tory. His refusal to sign was based on his perception of America’s best interests, and within a twinkling of time after Congress made its decision, he was commanding troops in defense of his country.
More positively, however, is the point that by any objective measure, John Dickinson was a leading figure in the founding generation. Until supplanted by Jefferson and Paine, he was the principle theorist for the colonial cause, well earning the sobriquet, “Penman of the American Revolution.” He was one of the most conspicuous members of the Continental Congress, was the primary drafter of the Articles of Confederation, served as the President of “the Delaware State” and as President of Pennsylvania, and—though the fact is sometimes wrongly denied—one of the most influential drafters of the United States Constitution.
This Article explores Dickinson’s contribution to the Constitution, and finds them almost as great as any man’s…
…In 1788, Dickinson campaigned for ratification of the Constitution by composing and arranging publication of nine public letters written under the pseudonym “Fabuis.” Designed to jump-start a ratification process that Dickinson thought was stalled, the letters were well received and widely reprinted….
Looking back from 1787 and 1788, one might say that Dickinson’s career had not exactly unfolded in a straight line. Perhaps that was a philosophical strength. Possessed of the wealth of a fine classical education, he drew on it heavily and wore it lightly. By birth a farmer, he had earned his living as one, and as a lawyer as well. With no apparent lust for political office, he had served as legislator, delegate in Congress, and president of two different states. With no desire to sever ties with Britain, he had first remonstrated for and then fought for the American cause. Although suffering the pains of what in those days advanced middle age, he made the trip to the Philadelphia convention to serve as one of the more experienced delegates. It should be no surprise then that his ideas and life experiences were to seep into the document that convention produced.
III. Dickinson’s Political Philosophy
A. Dickinson’s Consistency
Throughout his life, John Dickinson’s basic political philosophy retained a consistency and integrity remarkable for a person actively involved in a career in practical politics. There were refinements of course. Yet on can examine writing written over two decades, in the heat of the hour, and find very little inconsistent—and much mutual reinforcement—in them.
B. Humans as Social Creatures
Dickinson believed that man was endowed with natural rights as a gift from God. In his view, the Creator wanted man to be self-fulfilled.” Man is born for himself. It is not only his right, but his duty to pursue his own happiness.” Because God made humans to be social creatures, they can find happiness and freedom in the society of others. Humans have a dual nature, with both self-love and social instincts. These are interwoven and synergistic as such: “In the constitution which our Maker has assigned to man, two dispositions are observable; love of self and social affection. They are compatible, innocently, virtuously, advantageously, compatible, or they would not have been ‘joined together.’ Their union is the means to good ends.” An again, stated as follows: “Right involves duty. He grossly errs, if he supposes he can obtain it, by disregarding the happiness of others. Self love and social are as intimately united as colours in a ray of light. They ray without one of them would be imperfect [i.e., incomplete].”
To be sure, Dickinson implied, people had two sorts of rights or powers—those whose exercise could harm others and those whose exercise affected only oneself. Upon entering political society, people contributed some of their rights or powers to the central authority. Ideally, those contributed should be those in the first category: Man “must submit his will, in what concerns all, to the will of the whole society, and “[th]e authority of the whole, must be coextensive with its interests.” We may think of the rights contributed as one’s “alienable rights.” When all people yielded to society the power to injure others, then all could enjoy their retained rights more fully because everyone received protection from injury and freedom from fear. Everyone benefited as a result. This was the common good or the general welfare. Dickinson’s rhetorical emphasis on this natural law and social contract theory differs from that of Edmund Burke, another Whig statesman with whom he often has been compared.
C. The Purpose of Government
Dickinson believed in identifying ends before means. One should ascertain the purpose of a governmental establishment before choosing its structure or enacting its laws. The ideal purpose was to promote the common good or general welfare. In his draft of the Declaration of the Causes and Necessity of Taking up Arms, Dickinson wrote, “Government was instituted to promote the Welfare of Mankind, and ought to be administered for the Attainment of that End.” In adopting this view, Dickinson was adhering to Whig faith. John Locke had said something very much like it. So also had the highly influential essays by John Trenchard and Thomas Gordon published as Cato’s Letters, with which Dickinson was familiar. In this respect, moreover, Dickinson and Burke agreed. Burke had described Parliament as “one interest, that of the whole, where, not local purposes, not local prejudices ought to guide, but the general good.
Dickinson believed that to advance the general welfare government must respect freedom and protect good citizens from bad: “[T]ranquility and prosperity have commonly been promoted [in republics] in proportion to the strength of their government for protecting the worthy against the licentious, tend most to protect all against foreigners” because “the government will partake of the qualities of those whose authority is prevalent.” Perhaps somewhat circularly, he described the “worthy” in the words of Horace, the Roman poet: “Qui consulta partum, qui leges juraque servat”—which, loosely translated, means “those who obey the law and respect the rights of others.” At several points Dickinson suggested that laws inconsistent with government’s general welfare purpose were ultra vires, not binding on the citizenry, and should be resisted.
D. The Public Trust
John Locke had characterized government as a trust, with officials as trustees and the people as beneficiaries. The public trust concept became very popular among the eighteenth English Opposition authors who influence American Whigs. Cato’s Letters were replete with the language of public trust. So also were the writings of Henry St. John Bolingbroke. We have seen that Dickinson was familiar with “Cato.” He had read and admired Bolingbroke while studying at the Middle Temple. Among Americans, there were many in his generation who applied the trust metaphor to government. Indeed, the constitutions of both states in which Dickinson served in elective office—Delaware and Pennsylvania—explicitly referred to government as a trust.
As a real property and estates lawyer, Dickinson was comfortable with trust principles. That he thought they ought to be applied to government is evident as early as 1767; in that year, he wrote a private letter comparing the royal grant of Pennsylvania to William Penn to a “declaration of trust,” with Penn as trustee and his fellow-settlers as beneficiaries—and, presumably, with the Crown as settlor. Throughout his life, he used the figure in political debate, and notably in the constitutional debates of the 1780s.
The public trust concept was not mere empty metaphor. Both opposition writers and American Whigs drew from the law of fiduciaries specific conclusions about the standards that should guide public officials. Cato’s Letters inveighed against diversion of public wealth for private purposes and concluded that the crimes of public magistrates were greater than those committed by private parties. Samuel von Pufendorf, one of the most popular jurists of the time, had not used explicitly the language of public trust, but had contended for a long list of trust-style duties on rulers. Among these were governing for the public welfare, acquiring necessary knowledge, ultimate responsibility of the ruler for ministers, impartiality and the equitable distribution of burdens among citizens, conservation of assets, and avoidance of faction. Dickinson himself, following William Penn, argued that the trust duty prohibited officials from changing the form of government without the consent of the people they served. He thereby drew a distinction between ordinary laws and the more fundamental law of a constitution. Thus, Dickinson, like other opinion-molders of the time, shared the view that public trustees should be more than merely honest.
In his view, public trustees, like their private counterparts, should be “impartial—above faction. Dickinson’s favorite author, Francis Bacon, had written that the best policy for Kings was to hold themselves above faction—to “order those things which are general, wherein men of several factions do nevertheless agree, or in dealing with correspondence to particular persons, one by one. In a simile Dickinson later borrowed for other purposes, Bacon added, “The motions of factions under the King, ought to be like the motions (as the astronomers speak) of the inferior orbs, which may have their proper motions [i.e., their own motions], but yet still are quietly carried by the higher motion of ‘primum mobile.’”
In any event, throughout his political life Dickinson repeatedly promoted the ideal of official impartiality. Indeed, he applied the ideal even to God; when revising Jefferson’s draft of the Declaration of the Causes and Necessity of Taking up Arms, Dickinson added an appeal to “the supreme and impartial Judge and Ruler of the Universe.”…
E. Using the Lessons of History To Structure Government To Serve Its Purpose
How does one, in a fallen world, induce government to rise to such ideals? “Cato’s answer had been pessimistic: Nothing but fear and selfish considerations can keep men within any reasonable bounds.” For Dickinson, matters weren’t quite as dreadful as that. The passions could be the source of great evil, but “[d]uly governed, they produce happiness.” Indeed, “[t]he due regulation of the affections is the perfection [completion] of man’s character.” One achieved that “due regulation” through well-structured societal institutions; particularly important were 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.”
The role of a constitution was to lay down procedures for managing the rights and powers that citizens had 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 or raised obstacles to bad ones—the “cultivation of virtues and correction of errors.” For example, Dickinson recognized that government should be structured to effectuate the will of the people. But “the will of the people” could mean their immediate, short-term, passionate will or their long-term sense of advantage. A well-constructed constitution would increase the likelihood that government would further “a reasonable, not a distracted will.”
Those crafting a good constitution—placing principles into practice—could not proceed a priori. Prudent constitution makers sought information about how different arrangements had worked in the past. “Experience must be our only guide,” was Dickinson’s most famous remark at the Philadelphia convention; “Reason may mislead us.”
Accordingly, Dickinson sought guidance in the teachings of history. He resorted mostly to the well-documented histories of Greece, Rome, and Britain. He found British history especially useful because it “abounds with instances” of how a people had protected their liberties against their rulers. The course of British development demonstrated the centrality of certain basic liberties, such as the right of the people to approve all laws and taxes, either in person or through their representatives; trial by jury; the writ of habeas corpus; holding of lands by tenure with easy rents; and freedom of the press…
Dickinson favored various constitutional mechanisms for promoting “sympathy” and the closely allied value of official dependence on the citizenry. These included frequent elections, large legislatures, “rotation in office” (term limits), and assurance that citizens with the vote were themselves independent. As to the last—citizens independence—neither Dickinson, nor practically any other public figure among the founding generation, wanted electors who might sell their political support for bowls of porridge. Only citizens who were independent, financially and otherwise, could employ unfettered judgment in public affairs. That was one reason why, Dickinson said, “we cannot be free without being secure in our property.”….
Not only should voting citizens be independent, but so also should branches of government remain independent from each other. Neither Dickinson nor practically any other Founder was a proponent of branches of government “working together.”… Dickinson, like other Founders, was convinced that to promote free and impartial government, a constitution ought to institutionalize tension between the branches of government. Each branch would be ultimately dependent on the people, and independent from the others who compete to serve the popular interest; “FOR WHO ARE A FREE PEOPLE? Not those, over whom government is reasonable and equitably exercised, but those, who live under government so constitutionally checked and controlled, that proper provision is made against its being otherwise exercised.”
[A] government should be divided into three or four parts—as thereby where will be more obstructions interposed, against errors, feuds, and frauds, in the administration, and the interference of the people need be less frequent… the departments so constituted may therefore be said to be balanced.
Dickinson was an admirer of the British Constitution. In Great Britain, liberty had been preserved largely by the balance between the House of Lords, the House of Commons, the executive, and the judiciary….
In Britain, the executive preserved its independence from the other branches through the prestige of the Crown, the power to create peers, the authority to veto legislation, and the ability to influence the Commons with patronage. The British judiciary had become relatively independent, a development Dickinson supported to ensure the “purity of the courts of law.” For like other good Whigs, he supported the rule of law. That meant that the law was to be kept certain, for uncertainty “RENDERS PROPERTY PRECARIOUS, and GREATLY EXPOSES US TO THE ARBITRARY DECISION OF BAD JUDGES.” He followed Beccaria’s dictum that good laws should prevent radical inequalities and “diffuse their influence universally and equally.”
Dickinson, like many other Founders, believed that the greatest enemies of free, impartial government were those who conspired to prostitute political power for non-public ends. The founding generation called those conspiracies “cabals,” “combinations,” “juntos,” “parties,” or “factions.” The public happiness required that the schemes of factions be curbed before they came to fruitation. Otherwise, “usurpations, which might have been successfully opposed at first, acquire strength by continuance, and thus become irresistible. The preferred way to check factions was constitutionally, so that intense public response did not become necessary….
…In extreme cases, the public might have to respond militarily to break the excesses of faction. This would be unfortunate, for “[t]he cause of liberty is a cause of too much dignity to be sullied by turbulence and tumult.”
F. Dickinson’s Understanding of Federalism
As principle author of the Articles of Confederation and as president of two states, Dickinson had thought a good deal about federalism. He viewed the relationship between confederation and member state as analogous to that between political society and individual. Just as individuals contributed some of their rights or powers to society so as to better enjoy those retained, members of confederation contributed some of their rights/powers whose exercise might harm others, member states should contribute rights/powers to the confederation whose exercise might harm other member states… P. 446
Dickinson contended that the constitution of a good federation, like other constitutions, promoted advantages and suppressed disadvantages: “[T]he political Virtues of a Confederation suppresses the political Vices of a Confederation.” In the sixth “Fabius” letter in the 1788 series Dickinson offered another positive historical case study: the Scottish union with England. At length, he described the dire predictions some Scots had made in advance of the union, but that he said, all proved false. According to Dickinson, the actual results of union had been the cultivation of virtues and correction of errors; protection for the lower classes; improvements in agriculture, science, arts, trade, and manufacturers; the rule of law; “peace and security at home, and [i]ncrease[d] respectability abroad.” The Scottish Church and laws, courts, and judicature all had remained established and secure.
Dickinson argued that confederation on sound principles made all members stronger. In a good union as in the 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 that remains connected could be saved. The union between England and Scotland had shown that “[t]he stock of their union or ingraftment, as perhaps it may be called, being strong, [was] capable of drawing better nutriment and in greater abundance, than they could ever have done apart.” If, for example, sentiment for monarch or aristocracy arose in particular American states, confederation could protect the whole against it: “[I]s not this a disorder in parts of the union, and ought it not to be rectified by the rest? Is it reasonable to expect, that the disease will seize all at the same time? If it is not, ought not the sound to possess a right and power, bby which they may prevent the infection from spreading[?]”
As for the United States under the Articles of Confederation—in Dickinson’s estimation it was, like the Amphictyonic League, a negative model. The Articles had left the common power insufficient, and states retained the power to hurt each other. Morever, this inadequate constitution actually contained incentives for states to act selfishly. Dickinson demonstrated the point in one of his more turgid passages…
…Thus, the Articles had created a dysfunctional institutional arrangement that encouraged anti-social “free-riding.”.
Yet Dickinson also recognized that centralization could go too far. Where there were no externalities, there was no reason for central control. He affirmed that each member state should be sovereign in all matters that related to that state only… Any state that allowed the federal government to interfere in their sovereign jurisdiction would be guilty of a breach of trust, for it was the obligation of the “trustees or servants of the several states” to protect frm outside agents the power that citizens have placed in them.
G. Summary of Dickinson’s Political Thought
By way of summary, then, John Dickinson believed that government was a collection of contributed rights or powers—powers that, if exercised singly, could harm others. The contributed powers should be administered in trust and impartially for the general welfare by encouraging good behavior and discouraging bad behavior. If the constitution was to govern a confederation, it must set a proper balance of contributed and retained rights. Tools employed by good constitutions included:
1. Retention by the people of certain fundamental rights;
2. Alignment of public officials’ interests with those of the governed;
3. Ultimately dependence by the main branches of government on an independent citizenry
4. Independence of those branches from each other;
5. Motivation and power in the branches to check each other; and
6. Rules to discourage faction and turbulence.
IV. Philosophy in Action: John Dickinson at the Constitution Convention
B. Dickinson as a Problem Solver
Dickinson’s more significant contributions to the convention lay in his role in solving problems that had to be overcome before the new Constitution could be viable. The first of these was the distribution of powers between central government and states. The second was the composition and powers of the federal legislature. The third was the composition and powers of the executive, and fourth was the composition and powers of the judiciary. In addition, he contributed to the resolution of several more peripheral issues. These included the scope of Congress’s financial powers, the integrity of state boundaries, voter qualifications, and the slave trade. His influence on the resolution of the last two was small. On the integrity of state boundaries, his influence was significant; on the scope of financial powers, it probably was decisive.
Historian Forrest McDonald has pointed out that most of the convention delegates used sources and principles eclectically to support the needs of the moment….[T]hat with respect to principles [] was not true of John Dickinson….
H. The Distribution of Power Between Federal Government and States
….It was in this atmosphere that Dickinson arose on June 2 to champion his idea of federalism… In other words, Dickinson was suggesting that the states, which the majority of delegates thus far had considered mostly a nuisance, could inject into the new American system the same sort of balance that baronies provided in English government. The pre-existing fact of state governments could be turned to positive advantage. His ideas paralleled Madison’s insofar as Dickinson proposed spreading government over a wide area so as to render it more stable and less subject to faction. But Dickinson’s analysis was more complicated than Madison’s. Madison’s Virginia Plan did not contemplate employing powerful states as additional checks.
Thus, on June 7, in response to the objection that he was trying to unite distinct interests, Dickinson stated, “I do not consider this an objection, Safety may flow from this variety of Interests—there exists this Diversity in the constitution of G. Britain. We cannot abolish the States and consolidate them into one Govt—Indeed if we could I shd. be agt. it.”…
…On the other hand, when it came to the militia, Dickinson favored state governance. Dickinson always had favored use of a militia in preference to standing armies. Here the risk was an overreaching federal government; state control over the militia would serve as an obstacle to federal tyranny, By rendering a large federal military establishment less likely, reliance on the militia would check the desire for empire;
The other fault [damaging to republics] of which, as yet, there are no symptoms among us, is the thirst of empire. This is vice, that ever has been, and from the nature of things ever must be fatal to republican forms of government. Our wants, are sources of happiness our desires, of misery. The abuse of prosperity, is rebellion against Heaven: and succeeds accordingly.
D. Dickinson’s Contribution to the Structure and Powers of Congress
…He favored a large Senate because he wanted to “assimilate it as near as may be to the House of Lords,”… Even a venial legislature elected directly by the people was likely to select better Senators than the people who had elected that legislature. The proof was observed by Alexis de Tocqueville several decades later:
On entering the House of Representatives at Washington, one is struck by the vulgar demeanor of that great assembly. Often there is not a distinguished man in the whole number….
At a few yards’ distance is the door of the Senate, which contains within a small space a large proportion of the celebrated men of America. Scarcely an individual is to be seen in it who has not had an active and illustrious career: the Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honor to the most remarkable parliamentary debates of Europe.
How comes this strange contrast….? The only reason which appears to me adequately to account for it is that the House of Representatives is elected by the people directly, while the Senate is elected by elected bodies….
One of America’s leading constitutional historians has given credit to Dickinson for developing “an approach that was theoretically sound, practically sound, and tailored to American realities…. Dickinson alone had perceived that the United States already had institutional substitutes [for English baronies] in the form of the individual states—which, in a manner of speaking, were permanent and hereditary.”
E. Dickinson’s Contributions to the Structure and Powers of the Presidency
When the delegates’ attention turned to the executive, Dickinson again argued that ends should come before means. In his June 2 speech to the convention, he focused on the problem that he and his fellow delegates, who personally had known only monarchy, would encounter in creating a republican chief executive. The executive should be independent from the other branches. But hitherto executive independence had been achieved only in limited monarchies. In England, the executive’s power was extensive; it arose from the monarch’s wide powers and from the “attachments which the Crown draws to itself—that is, the monarch’s prestige as a national symbol and his power of patronage, by which he could attach private citizens and members of the House of Commons to the royal cause.
In America, a monarchy was out of the question: “The spirit of the times—the state of our affairs, forbad the experiment, if it were desireable [sic].” The convention’s task, therefore, was to look for institutional substitutes that would render a republican executive as independent from the legislature and judiciary as the King was in England.
…Of course, Dickinson’s preference for and executive council was not the product of abstract speculation. Both as president of Delaware and as president as Pennsylvania, he had operated through such councils. In each case, the council members had been selected so as to leave them independent of the president.
The finished constitution did not create and executive council per se, but Dickinson thought he had obtained a good substitute in the Senate. In truth, that body shared certain characteristics with the executive councils of Delaware and Pennsylvania. It was relatively small and elected for staggered terms. It was associated with the executive in the appointment process. It had an “advice and consent” function. Like the Pennsylvania council, it tried impeachments.
V. Conclusion
Some historians have downplayed Dickinson’s contributions to the Constitution. This is an error. If James Madison was the “father of the Constitution,” then John Dickinson was at least a kindly uncle. In part, this conclusion can be inferred from the results, which were much closer to Dickinson’s ideas than to Madison’s. More importantly, we have explicit evidence that Dickinson played pivotal roles at numerous points of constitutional decision making: choosing a method of electing Senators, setting the formula for apportioning the Senate, establishing the balance between state and federal powers, deciding to enumerate the powers of Congress, excluding judges from the executive veto, creating independent federal judges below the Supreme Court, protecting states from being forcibly combined with other states, and adding trust-style limitation’s on Congress’s financial powers. One historian whose assessment of Dickinson’s contribution was closer to the mark was Professor M. E. Bradforrd: “Possibly the most learned of the Framers [he said of Dickinson], undoubtedly the most undervalued and misunderstood of their notable company… He is… definitive of the moderate Federalist position of 1787-1788 and a key to the meaning of what was achieved.” Professors Forrest and Ellen Shapiro McDonald agree that “the most underated of all the Founders of this nation was John Dickinson.”…