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How Pre-Revolution Pamphlets Help Show that a Key “Progressive” Constitutional Theory Is Wrong

RGNStPaulsWriters on the Constitution frequently overlook valuable aids to interpreting the document. I previously have mentioned the example of eighteenth-century law books. Also largely neglected are the pre-Revolutionary pamphlets written by Americans defending their colonies against British overreaching. (For an article on constitutional sources, click here.)

These pamphlets were composed from 1763 until the outbreak of the Revolution in 1775. Their authors were mostly prominent lawyers. They rested their case on both natural law and the “rights of Englishmen.” The leading authors included Daniel Dulany of Delaware, Richard Bland and Thomas Jefferson of Virginia, James Otis and John Adams of Massachusetts, Stephen Hopkins of Rhode Island, James Wilson of Pennsylvania, Alexander Hamilton of New York, and—most influentially—John Dickinson of Pennsylvania and Delaware. (Tom Paine’s Common Sense appeared only later, after the war had begun.)

Not all of these writers later supported Independence. Dickinson thought the Declaration of Independence pre-mature and did not vote for it—although as soon as the vote went against him, he supported the decision by enrolling in the continental army. Dulany, however, remained a Loyalist, and in 1781 lost his property as a result.

Yet Dulany certainly had supported the American cause within the framework of the British Empire. His 1763 pamphlet, Considerations on the Propriety of Imposing Taxes in the British Colonies, was an important statement of the American position of “no taxation without representation.” Dulany argued that the jurisdiction of the British parliament over the colonies was limited to the regulation of trade among the units of the empire. Britain could regulate trade through prohibitive tariffs, but not impose taxes merely to raise revenue.

You can see the effects of Dulany’s argument on the Constitution, both in positive and in negative ways. On the positive side, his distinction between impositions for revenue and impositions to regulate commerce was adopted by other pamphleteers, and it became the basis for the Constitution’s distinction between the power to tax (I-8-1) and the power to regulate foreign and interstate commerce (I-8-3). On the negative side, the Constitution reflects a considered decision to reject another of Dulany’s arguments.

To explain: In 1763, supporters of Parliament pointed out that Americans had not objected to other British laws regulating internal colonial matters. For example, Parliament had changed the American rules of descents (land inheritance), had promulgated uniform rules for colonial troops, and had established the colonial post office.

Dulany’s line of response was this: All of those laws involved activities affecting more than one state. The change in the rule of descents facilitated trade, many American soldiers served outside their home colonies, and the post office was an inter-colonial enterprise. In some ways Dulany’s argument was similar to one employed by modern “progressives” who claim the Constitution grants the federal government authority to regulate anything with significant interstate effects.

The Virginia Plan offered early in the Constitutional Convention essentially adopted the Dulany approach. But as the Convention wore on, the Framers decided instead to enumerate (list) specific powers they thought should be granted the central government. And they very pointedly omitted power to regulate many other activities with interstate effects.

Thus, the Constitution grants separately three powers that Dulany had treated as interconnected: regulation of commerce (I-8-3), establishment of the post office (I-8-7), and “Rules for the Government and Regulation of the land and naval Forces” (I-8-14). But the Framers left out governance of descents, even though inheritance has interstate implications. This was clearly deliberate, and advocates of the Constitution repeatedly emphasized this omission during the ratification debates—stating over and over again that regulation of descents was outside the central government’s sphere. (See, e.g., Federalist Nos. 29, 33, and 41.) In this way, the Founders communicated that not every activity with interstate effects was subject to federal superintendence. If it wasn’t on the list, the feds couldn’t touch it.

The Founders recognized that human activities are highly independent. Nevertheless, they made the deliberate choice to decentralize power in the interests of better government and human liberty.

Rob Natelson