The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 with 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.
Tomorrow: Dickinson, ratification, and retirement