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The Constitution described by John Dickinson in his “Letters of Fabius” is a model of prudence and moderation, based not primarily on theoretical arguments, but on experience and an extensive knowledge of history.
Though virtually ignored by scholars in recent decades, John Dickinson was one of the most influential of the American Founders. When he entered the Pennsylvania State House in May 1787, as Delaware’s delegate to the Constitutional Convention, he was one of the most knowledgeable and experienced statesmen to attend the Grand Convention. Colonial legislator, “Penman of the Revolution,” colonel in the state militia during the War of Independence, drafter of the Articles of Confederation, member of the Stamp Act, Continental, and Confederation Congresses, and chief executive of two states—few other men could boast of similar achievements. In his character sketches of the delegates, William Pierce observed that Dickinson “will ever be considered one of the most important characters in the United States.”[1]
Although indisposed for much of the Convention as a result of poor health, Dickinson nevertheless made significant contributions to the work of that body. It was he who first proposed that the Senate be elected by the state legislatures; and he was also influential in determining the manner of election of the president. Even more importantly, his was the voice of moderation and prudence throughout the Convention. Historian Forrest McDonald has noted that, had it not been for the presence of Dickinson, and about seven other delegates, the extreme nationalists would have prevailed in the Convention, and “the resulting constitution would not have been ratified.” This has led one prominent political theorist to characterize Dickinson as “definitive of the moderate Federalist position of 1787-1788 and a key to the meaning of what was achieved” in that remarkable document, the Constitution of the United States.[2]
It is fitting, therefore, that in attempting to understand the meaning of the American Constitution we should look to the writings of John Dickinson. While Dickinson’s political thought could easily fill two volumes, the writings with which we are concerned here are those penned in defense of the work of the Constitutional Convention. These essays, entitled the Letters of Fabius, were widely published throughout the nation beginning in April 1788 and had a powerful influence in tipping the scales in favor of ratification of the new Constitution. While less extensive than the Federalist Papers, the Fabius Letters may well have been as persuasive as the former, and the two series bear an interesting comparison with one another.[3]
George Washington had high praise for the first four essays. He wrote to John Vaughan:
Sir: I have received your two letters of the 17th and 21st inst. and the papers containing the four numbers of Fabius which accompanied them.
I must beg you to accept my best thanks for your polite attention in forwarding those papers to me. The writer of those pieces, signed Fabius, whoever he is, appears to be master of his subject; he treats it with dignity, and at the same time expresses himself in such manner as to render it intelligible to every capacity. I have no doubt but that an extensive republication of those numbers would be of utility in removing the impressions which have been made upon the Minds of many by an unfair or partial representation of the proposed constitution, and would afford desirable information upon the subject to those who sought for it.[4]
Dickinson’s choice of pseudonym sets the tone for his letters. For, as Forrest McDonald has pointed out, Quintus Fabius Maximus Cunctator was the Roman general who saved the republic through caution, prudence, patience, and persistence.[5] Indeed, the Fabius Letters are a model of moderation and prudence, with their frequent appeals to history to justify the new Constitution and to warn against the danger to the nation should it fail to be ratified.
Dickinson begins his essays by dividing those who oppose the Constitution into two classes. To the first belong those who are enemies of the United States and those who seek to gain private advantage from the nation’s current problems. People such as these are unworthy of his attention, he says. To the second group, however, belong those who are friends to the United States and whose friendship gives rise to legitimate concerns for its future. Those who belong to this second group “deserve the highest respect” and should be encouraged to air their concerns. For, although they may be mistaken in their assessment of the proposed Constitution, they are acting from the best of motives and do a service to their country:
What concerns all, should be considered by all; and individuals may injure a whole society, by not declaring their sentiments. It is, therefore, not only their right, but their duty, to declare them…. Before this tribunal of the people, let every one freely speak, what he really thinks, but with so sincere a reverence for the cause he ventures to discuss, as to use the utmost caution, lest he should lead any into errors, upon a point of such sacred concern as the public happiness.[6]
Fabius cautions that the judgment of even good men can be unconsciously impaired by local or personal interests. The best remedy for such an impairment, he suggests, is the example of history, particularly that of the Greeks. They too contended for union, yet were never able to “relinquish their own interests and advancement, while they deliberated for the public.” The consequences for Greece led to their eventual destruction, and the same fate could await America. Therefore, he urges, let us “cling to Union as the political Rock of our Salvation.”[7]
In answer to those who fear that the Constitution would eventually lead to despotism, Fabius suggests that two features of the proposed system make any such eventuality highly unlikely: “the power of the people pervading the proposed system, together with the strong confederation of the states.”[8] So long as these features are reserved, he says, “the question…will be—not what may be done, when the government shall be turned into a tyranny; but how the government can be so turned?”[9]
The efficacy of the first feature—that of the power of the people—is dependent upon the virtue and public spiritedness of the citizenry. And he praises the proposed Constitution for minimizing the potential for corruption and promoting virtue and moderation both in the governors and in the governed.[10] Every precaution was taken by the Convention to ensure that the House of Representatives remains free from corruption, Fabius assures his audience. The large number of voters and their dispersion throughout an extensive territory will make corruption in the election process as impracticable as human institutions are capable of making them.[11] Reflecting classical republican theory, he writes that the frequency of elections will serve as a further barrier to corruption in that body: “It has been unanimously agreed by the friends of liberty, that frequent elections of the representatives of the people, are the sovereign remedy of all grievances in a free government.” The members of a House of Representatives thus constituted will reflect the general interests, feelings, and sentiments of the people, he believes.
The “strong confederation of the states” is to be secured through the institution of the Senate, which Fabius sees as inevitably comprising the nation’s natural aristocracy of talent and virtue and as reflecting the importance of the states as political communities. The Senate, he says, is “to be created by the sovereignties of the several states; that is, by the persons, whom the people of each state shall judge to be most worthy, and who, surely, will be religiously attentive to making a selection, in which the interest and honour of their state will be so deeply concerned.” The states being directly represented in the national councils, Fabius expects that the residual sovereignty of the states will remain forever inviolate and their interests promoted. In fact, he anticipates that the House and Senate together will act “not only [as] legislative but also diplomatic bodies, perpetually engaged in the arduous talk of reconciling, in their determinations, the interests of several sovereign states.”
Fabius points to the example of the Achaean League as a model for the American Union. The states constituting that league, he says, were animated by such noble and benevolent principles that no resolutions were passed by their assembly unless they were equally advantageous to the whole confederacy and the interests of each state were protected. Surely, Fabius writes, Americans “have wisdom and virtue enough, to manage their affairs, with as much prudence and affection of one for another as these ancients did.”[12]
Nevertheless, because of the frailty of human nature, wisdom, virtue, and mutual affection are not sufficient, in and of themselves, to guarantee that the legitimate interests of the states will be protected. The institutions of government must, therefore, be so constructed that the likelihood of oppression of one part of the nation by another is reduced to a minimum. The history of confederated republics had made that point amply clear. Fabius, therefore, denies that the composition of the Senate was a mere compromise among the delegates to the Convention. Rather, he says, it was “an original substantive proposition” based upon the principle that
a territory of such extent as that of United America, could not be safely and advantageously governed, but by a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union; that for the securer preservation of these sovereignties, they ought to be represented in a body by themselves, and with equal suffrage.[13]
Drawing an analogy between the Senate and the British House of Lords, Dickinson cites Blackstone’s argument that the interests of the nobility could not be adequately protected unless they were represented in a separate branch of the legislature. Otherwise, according to Blackstone, “their privileges would soon be borne down and overwhelmed.” So, in like manner, the reader is left to conclude, the interests of the states cannot be adequately protected unless they are equally represented in their own house of Congress.
In addition to representing and protecting the sovereignty of the states as distinct political communities, the Senate provides other advantages as well. It provides sufficient permanence that the members might obtain the knowledge of foreign and domestic affairs necessary for promoting the nation’s interests. Yet, the senators’ tenure in office is sufficiently limited that they will still be “responsible to, and controulable by the people.”
Should these protections placed in the Constitution not be sufficient, however, there remains another security for the people’s liberty. Fabius recalls the balance achieved in the constitution of the Roman Republic and sees the president as ensuring a similar balance: “We are to have a president, to superintend, and if he thinks the public weal requires it, to controul any act of the representatives and senate.” But the president “will be no dictator,” he assures his audience. He will be chosen by electors who are themselves chosen by the people, and shall, therefore, be answerable to no “standing body whatever.’’ He will thus be subject to no “undue influence,” thereby limiting the potential for corruption. The president will also be subject to checks upon his power. Two-thirds of both houses of Congress can override his veto, and he is subject to impeachment if he abuses his office.
Fabius asks rhetorically:
How varied, balanced, concordant, and benign, is the system proposed to us? To secure the freedom, and promote the happiness of these and future states, by giving the will of the people a decisive influence over the whole, and over all the parts, with what a comprehensive arrangement does it embrace different modes of representation…?
The Convention had accomplished all that could reasonably be achieved to maintain the people’s liberty while simultaneously promoting their prosperity, Fabius argues. Yet, human institutions, no matter how carefully and wisely crafted, are by nature imperfect. Despite the checks upon power built into the structure of the government, the ultimate check on the unjust or illicit use of power will necessarily be the people themselves. He writes:
All the foundations before mentioned, of the federal government, are by the proposed system to be established, in the most clear, strong, positive, unequivocal expressions, of which our language is capable. Magna charta, or any other law, never contained clauses more decisive and emphatic. While the people of these states have sense, they will understand them; and while they have spirit, they will make them to be observed.
It is the people’s duty to be ever vigilant and to ensure that the Constitution is preserved, Fabius warns. And lest the people become complacent and allow the government to undertake unconstitutional measures under some false pretext, he reminds his readers of the consequences which may ensue: “worthy is it of deep consideration by every friend of freedom, that abuses that seem to be but trifles,’ may be attended by fatal consequences.” While the people ought not reject the Constitution out of fear that the powers granted to the government might be abused, likewise they ought to be watchful lest the Constitution itself be abused by those who are entrusted with its preservation. “It is [the people’s] duty to watch, and their right to take care, that the constitution be preserved,” he writes.[14]
This duty imposes an awesome responsibility on the people and should never be abused, he cautions. For, although the will of the people is the ultimate foundation of the government, this will, to be exercised rightly, must be exercised reasonably:
By the superior will of the people, is meant a reasonable, not a distracted will. When frenzy seizes the mass, it would be equal madness to think of their happiness, that is, of their freedom. They will infallibly have a Philip or a Caesar, to bleed them into soberness of mind.[15]
It is, therefore, the wisdom and virtue of the people rather than mere self-interest that is to be the ultimate check upon the government. Yet, Fabius also recognizes the fallibility of human nature. For, history shows that “the liberty of single republics has generally been destroyed by some of the citizens, and of confederated republics, by some of the associated states.” The solution is to be found in ensuring that the government is sufficiently strong to protect “the worthy against the licentious.”[16] This leads to a discussion of the nature and purpose of political society as well as that of confederations of states:
As in forming a political society, each individual contributes some of his rights, in order that he may, from a common stock of rights, derive greater benefits, than he could from merely his own; so, in forming a confederation, each political society should contribute some share of their rights, as will, from a common stock, of these rights, produce the largest quantity of benefits for them.[17]
The influence of Locke’s social compact theory of the foundations of society is evident here. Yet, Dickinson appeals beyond Locke to an idea of community far richer than Locke’s mere aggregate of atomized individuals. His thought, in fact, reflects both Aristotle’s idea of political society as based on friendship and the Christian doctrine of charity (love of neighbor). He writes:
Humility and benevolence must take place of pride and overweening selfishness. Reason, rising above these mists, will then discover to us, that we cannot be true to ourselves, without being true to others—that to love our neighbors as ourselves, is to love ourselves in the best manner—that to give, is to gain—and, that we never consult our own happiness more effectually, than when we most endeavour to correspond with the divine designs, by communicating happiness, as much as we can, to our fellow-creatures.[18]
For Dickinson, political society has a moral as well as a practical end. He had always considered the United States as founded on “sacred obligations” of mutual support, and for him the work of the Convention had not been a mere matter of political expediency or self-interest. As he told the Convention,
We are not forming plans for a Day, Month, Year or Age, but for Eternity. Let us endeavour with united Councils to establish a Government that not only may render our Nation great, respectable, free, and happy, but also VIRTUOUS. Let us try to combine political Establishments with moral Virtue, that if possible the first may be equal with the Duration of this World and an aid, or at least not a Hindrance, to the Enjoyment of another.[19]
Reflecting this sentiment, Fabius writes that, “We may with reverence say, that our Creator designed men for society, because otherwise they cannot be happy.” And just as men cannot be happy without freedom, so they cannot be truly free without society. Fabius continues:
Each individual then must contribute such a share of his rights, as is necessary for attaining that security that is essential to freedom; and he is bound to make this contribution by the law of his nature, which prompts him to a participated happiness; that is, by the command of his creator; therefore, he must submit his will, in what concerns all, to the will of all, that is of the whole society. What does he lose by this submission; The power of doing injuries to others—and the dread of suffering injuries from them. What does he gain by it? The aid of those associated with him, for his relief from the incommodities of mental or bodily weakness—the pleasure for which his heart is formed—of doing good—protection against injuries—a capacity of enjoying his undelegated rights to the best advantage—a repeal of his fears—and tranquility of mind.[20]
Like benefits, he says, are to be obtained in a confederation, with an attendant surrender of some of the rights of the member states. For by such a surrender, the individual citizens who compose those states will achieve an even greater degree of happiness. Thus, he writes of Americans that, “As man, he becomes a citizen; as a citizen, he becomes a federalist…. He carries into society his naked rights: These thereby improved, he carries still forward into confederation.”[21]
He makes it clear that this confederation is not to be merely an aggregate of self-interested individuals, each contending for their own ends. For the people, he says, are “drawn together by religion, blood, language, manners and customs,” and he likens the proposed confederation to a family, in which each son rules his own household, and in other matters the whole family is directed by the common ancestor. Fabius describes the nation that will result from such a confederation as a model of moderation, justice, and happiness. He writes:
Delightful are the prospects that will open to the view of United America—her sons well prepared to defend their own happiness, and ready to relieve the misery of others—her fleets formidable, but only to the unjust—her revenue sufficient, yet unoppressive—her commerce affluent, but not debasing—peace and plenty within her borders—and the glory that arises from a proper use of power, encircling them.[22]
Dickinson’s view of society is thus closer to that of Vattel and Blackstone than to that of Locke. Vattel declared that rights were “nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty.”[23] Russell Kirk has stated of Blackstone that,
The natural law described by Blackstone was rooted in Christian ethics; and it declared ‘the absolute rights of man’—the natural liberty of mankind, consisting of three articles, ‘the right of personal security, the right of personal liberty, and the right of private property.’ Yet, these rights were not absolute in the sense of having no limits: as Blackstone put it, ‘but every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to these laws which the community has thought proper to establish.’ There, more clearly expressed than by Locke, is a fundamental doctrine of American politics.[24]
Perhaps closest of all to Dickinson’s view of man and society, however, is that of Edmund Burke. For, both viewed civil society as a partnership which includes man’s relationship to God and which is directed toward the development of man’s higher nature. As Burke would write in his Reflections on the Revolution in France,
[T]he state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, callico or tobacco, or some other such low concern, to be taken up for a little temporary interest and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection…. [Without] civil society man could not by any possibility arrive at the perfection of which his nature is capable, nor even make a remote and faint approach to it…. He who gave our nature to be perfected by our virtue, willed also the necessary means of its perfection—He willed therefore the state—He willed its connexion with the source and original archetype of all perfection…. [For] His will…is the law of laws and the sovereign of sovereigns.[25]
For Dickinson, as for Burke, civil society is the necessary means by which human beings are connected with the divine, by which human nature is held in its appointed place in conformity to the higher moral law.[26]
Dickinson’s view of society and of the ends of government are derived from his understanding of human nature—an understanding which reflects his deeply held Christian beliefs. Because of original sin, man’s fallen nature is prone to evil, yet capable of virtue. Society exists to fulfill man’s higher nature by restraining his baser passions and promoting the goodness of which he is capable. In a democracy, the government which superintends the society is dependent on the will of the people to a greater degree than in any other form. Therefore, such a balance in the constitution must exist that the people’s higher will (i.e., a will governed by moral virtue and right reason) will superintend the government at the same time that the government maintains the conditions necessary for the formation and predominance of the higher will of society. Or, as Dickinson puts it, the purpose of government is to protect “the worthy against the licentious.”[27]
It is this understanding of human nature, of society, and of government that constitutes the foundation upon which the elaborate structure of the Constitution is built, in Fabius’s view. Because of the dual nature of human beings, the Constitution is designed so to limit and restrain power that bad men will be checked in their evil schemes, well-meaning but mistaken men will be prevented from bringing about ill-conceived and unjust measures, and the wisdom and virtue of the people will thereby prevail.
It is in this context that Dickinson sees the stronger confederation of the states under the new Constitution as providing a check against the spread of moral corruption and violence that consumed the entire nation. (He undoubtedly has in mind Shays’ Rebellion, which had horrified the members of the Constitutional Convention, and the violence and corruption that he had witnessed in his own state of Pennsylvania since independence.) Using the analogy of the human body, he writes that,
It has…been justly observed, that if a mortification takes place in one or some of the limbs, and the rest of the body is sound, remedies may be applied, and not only the contagion prevented from spreading, but the diseased part or parts saved by the connection with the body, and restored to former usefulness. When general putrefaction prevails, death is to be expected. History sacred and profane tells us, that, corruption of manners sinks nations into slavery.[28]
Though a sine qua non for good government, according to Fabius, a strong confederation alone is insufficient to ensure that government will live up to its “sacred trust.” Sufficient controls must also exist within the structure of the federal government itself to promote, if not to guarantee, justice. Central to this structure is the belief of Montesquieu and the classical republicans that “[t]he government must never be lodged in a single body.” Fabius argues in Letter IV that, from such a government, “rash, partial, illegal, and when intoxicated with success, even cruel, insolent and contemptible [edicts], may at times be expected.” In Letter VI, he reaffirms that position when he writes that “when the fancy is warmed, and the judgment inclined, by the proximity or pressure of particular objects, very extraordinary declarations are not unfrequently made. Such are the frailties of our nature, that genius and integrity sometimes afford no protection against them.”[29] Both philosophy and experience show, he concludes, that the solution is to be found in the principle of the separation of powers. He writes:
The judgment of the most enlightened among mankind, confirmed by multiplied experiments, points out the propriety of government being committed to such a number of great departments, as can be introduced without confusion, distinct in office, and yet connected in operation….
Such a repartition appears well calculated to express the sense of the people, and to encrease the safety and repose of the governed, which with the advancement of their happiness in other respects, are the objects of government…. The departments so constituted, may therefore be said to be balanced.[30]
The government that will exist under the proposed Constitution, he argues, is well calculated to achieve these legitimate objects of government. For, it is “so diversified and attempered” as to ensure the people’s safety while promoting their happiness:
Our government under the proposed confederation will be guarded by a repetition of the cautions against excesses. In the senate the sovereignties of the several states will be equally represented; in the house of representatives, the people of the whole union will be equally represented; and, in the president, and the federal independent judges, so much concerned in the execution of the laws, and in the determination of their constitutionality, the sovereignties of the several states and the people of the whole union, may be considered as conjointly represented.[31]
In the first four letters, Fabius concerned himself primarily with the domestic tranquility and prosperity that would result from adoption of the proposed Constitution. In Letter V, he uses similar arguments to show that the Constitution is the necessary means of protecting the nation against invasion or domination by foreign powers. Such protection, he says, can only be achieved by a government that is sufficiently powerful to bring to bear the force of the whole nation. If weakened by internal discord, America, like so many nations before it, will fall prey to the ambition and lust for domination of other countries. “Hence it is evident,” he writes, “that such establishments as tend most to protect the worthy against the licentious, tends [sic] most to protect all against foreigners.”
Interestingly, Fabius’s focus here shifts somewhat from his previous emphasis. Whereas before his description of “the worthy” had focused on moral virtue, he now defines “the worthy” as “He who [serves] the constitution, liberties and laws of his country.” Aristotle had drawn a distinction between the good man and the good citizen, but Fabius apparently sees no such tension—at least not in the context of the American republic. For by establishing a government that is unlikely to be subject to “the undue influence of passions either in the people or in their servants” the Constitution will promote a spirit of moderation, justice, charity, and respect for the rule of law. “Then,” he says, “in a contest between citizens and citizens, or states and states, the standard of laws may be displayed, explained and strengthened by the well-remembered sentiments and examples of our forefathers, which will give [the government]…sanctity.”[32]
Fabius exhorts his audience to learn the lessons of history. His praise of history as a valuable field of study for both statesmen and citizens is worth quoting in full; for it summarizes Dickinson’s approach to statesmanship throughout his long career. He writes:
A knowledge of the distinguishing features of nations, the principles of their governments, the advantages and disadvantages of their situations, the methods employed to avail themselves of the first, and to alleviate the last, their manners, customs, and institutions, the sources of events, their progresses, and determining causes, may be eminently useful, tho’ obscurity may rest upon a multitude of attending circumstances. Thus one nation may become prudent and happy, not only by the wisdom and success, but even by the errors and misfortunes of another.[33]
This leads to a brief account of the history of several nations, ancient and modern, including Rome, Carthage, Athens, the Achaean League, and the Florentine Republic. According to Fabius’s account, the history of these states provides two important lessons for America. First, an excess of democracy destroys republics by allowing the people to encroach upon the legitimate authority of the government. Second, confederated republics throughout history have fallen victim to internal dissent, foreign intrigue, or invasion because of a lack of sufficient authority in the central government. The lesson for America is clear: The greatest threat to liberty arises not from a strong central authority based on a principle of representative government, but from a government which is overly influenced by the whims of the multitude or which lacks sufficient authority to protect the interests of the nation as a whole.[34]
It is clear from Dickinson’s account of history that, while he advocates a healthy respect for the “sentiments and examples of our forefathers,” he does not advocate a slavish adherence to the customs and usages of the past. Rather, the statesman ought to learn from the successes and failures of those who came before and seek to build on their achievements while avoiding their errors. This vicarious experience, combined with the particular experience of a people and a prudent adaptation of the lessons of the past to the unique circumstances of time and place, will make possible the creation of a novus ordo seclorum.
Thus, in answer to the critics of the Constitution, who argued that no territory as extensive as America had ever been ruled by a republican form of government and that it must inevitably fall into despotism, Fabius argues that the Framers had learned the lessons that history had offered, enabling them to create something unique in the history o the world. He writes: “It is said—Such territory has never been governed by a confederacy of republics. Granted. But, where was there ever a confederacy of republics, in such territory, united, as these states are to be by the proposed government?”[35]
Fabius then articulates the particular features of that government—its federal character, its system of checks and balances, its system of representation of both individuals and states, its ability to marshal the resources of the nation when the public good requires it—and concludes:
So far is the assertion from being true, that ‘a very extensive territory cannot be ruled by a government of a republican form,’ that such a territory cannot be well-ruled by a government of any other form…. Can any government be devised that will be more suited to citizens who wish for equal freedom and common prosperity; better calculated for preventing corruption of manners; for advancing the improvements that endear or adorn life; or that can be more conformed to the understanding, to the best affections, to the very nature of man?[36]
Dickinson, then, does not depart from Aristotle’s teaching on the nature of man and citizen. Aristotle had argued that the distinction between the good man and the good citizen disappears in the best regime. While Dickinson always avoided discussions of abstract political theory (arguing instead from experience and history), he would appear to believe that the American republic, as constituted by the proposed Constitution, is the regime which most conforms with human nature (i.e., the best possible regime). This is not to say that Dickinson believed that it was suitable to all peoples, at all times, in all circumstances. His prudence would never allow him to make such a broad theoretical declaration. Nevertheless, he saw the American Constitution as an improvement even upon that of Great Britain—a constitution which he had lavishly praised in the Convention and of which he writes that “no nation has existed that ever so perfectly united those distant extremes, private security of life, liberty, and property, with exertion of public force…or so happily blended together arms, arts, science, commerce, and agriculture.” He compares, for example, the American president with the British monarch, and asks,
Is there more danger to our liberty, from such a president as we are to have, than to that of Britons from an hereditary monarch with a vast revenue—absolute in the erection and disposal of offices, and in the exercise of the whole executive power—in the command of the militia, fleets, and armies, and the direction of their operations—in the establishments of fairs and markets, the regulation of weights and measures, and coining of money—who can call parliaments with a breath, and dissolve them with a nod—who can, at his will, make war, peace, and treaties irrevocably binding the nation—and who can grant pardons and titles of nobility, as it pleases him?[37]
This is not to say that the proposed Constitution is perfect. Yet, he appeals to a spirit of moderation in urging his countrymen to accept the good which it is possible to achieve rather than attempting a degree of theoretical perfection which is impossible to attain. “In political affairs,” he asks rhetorically, “is it not more safe and advantageous, for all to agree in measures that may not be best, than to quarrel among themselves, what are best?”[38]
While it may be that amendments to the document will be necessary, Fabius rejects attempts to make such amendments on the grounds of achieving a theoretical perfection. “As to alterations,” he writes, “a little experience will cast more light upon the subject, than a multitude of debates.” For this reason, the Framers had provided for a process of amendment which would be made “on the authority of the people, without shaking the stability of the government…. Thus, by a gradual progress, we may from time to time introduce every improvement in our constitution, that shall be suitable to our situation.” But, Fabius cautions against individual officials’ engaging in such an important business on their own authority. It is, rather, the collective sense of the states, as political communities, combined with the deliberative sense of Congress, which ought to play the decisive role in such a momentous business. For in this manner “the sentiments of all United America” can be obtained and weighed “in the coolest manner” so that the “common welfare” and “the happiness of these states” might be promoted.[39]
The Constitution described by the Letters of Fabius, then, is a model of prudence and moderation, based not primarily on theoretical arguments, but on experience and an extensive knowledge of history. Nor is the Constitution created by the Convention an invitation to the pursuit of some theoretical perfection by the government. It is, rather, a government of limited powers for limited ends. It seeks to preserve the nation from internal disorder, to promote commerce among the states and with other nations, to protect the nation from foreign invasion and foreign intrigue, and to promote the nation’s interests abroad. The Constitution sought to provide sufficient power in the federal government so that the states could not interfere in the exercise of these legitimate functions. Yet, in all other matters, the states are to retain their sovereignty and exclusive jurisdiction over the rights and interests of their citizens. By this balanced and limited structure, the prosperity, liberty, and virtue of the people is thereby preserved and promoted, in Dickinson’s view. While the framework of the government so established is designed to provide the “checks and balances” necessary to preserve this structure, Dickinson makes clear that the ultimate responsibility for the preservation of the people’s liberty rests with the people themselves. If they cease to be diligent, if they allow the government to undertake unconstitutional measures under false pretexts, or if they allow themselves to become morally corrupt so that they no longer choose persons of wisdom and integrity to govern the nation, then they will lose their liberty, and “[the] loss of happiness then follows as a matter of course.”[40]
In short, Dickinson’s view of the Constitution is that of a moderate Federalist, and he describes a document which both moderate Federalists and Anti-Federalists could accept (which perhaps explains the persuasive power of his argument). But, is Dickinson’s view of the Convention’s work, as expressed in the Fabius Letters, at variance with the views of Alexander Hamilton, James Madison, and John Jay (writing under the pseudonym “Publius”), as expressed in the Federalist Papers? Those scholars who tend toward a selective reading of the Federalist, to justify a strongly nationalist interpretation of that work, would argue that it is.[41] Yet such an argument is not justified by the Federalist Papers as a whole. A close reading of the latter work reveals a remarkable similarity between the two documents in their interpretation of the intentions of the Framers. Both the Fabius Letters and the Federalist Papers, rightly understood, present a modest view of the ends of government as envisioned by the Convention; and the authors of both documents believe that wisdom, virtue, and experience (rather than appeals to abstract rights or a theoretical perfection) form the basis of the American republic. In the political system for which they seek ratification, the sovereignty of the states is not of secondary importance, but is one of the pillars of the constitutional edifice. The states, through their various subordinate communities, provide the source of the virtue and wisdom that are to guide the nation, and they act as a check on the potential abuse of power by those entrusted with it at the national level. In this system, appeals to “arithmetical principles” or an abstract perfection are rejected in favor of the “lamp of experience” and the good sense of the people and their representatives. Both for Publius and for Fabius, only time and experience, and the prudent application to particular circumstances of the lessons which they offer, can achieve a true and lasting good.[42] And any such applications must be undertaken in the humble recognition of the fallibility of human reason. Such a recognition will lead to a spirit of compromise and an understanding that perfect good is to be found only in the next world. To attempt to achieve perfection in this world will lead not to perfection but to anarchy or tyranny. It is ultimately this spirit—with its reliance on prudence, experience, moderation, and compromise—that can be called the animating spirit of the American Constitution.
This essay was first published here in May 2012.
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Notes:
1. Max Farrand, ed., Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), III: Appendix A, CXIX, 88.
2. Forrest McDonald and Ellen S. McDonald, “John Dickinson, Founding Father,” Delaware History, 23, no. 1 (1988): 24-38; and M.E. Bradford, A Worthy Company: Brief Lives of the Framers of the United States Constitution (Marlborough, NH: Plymouth Rock Foundation, 1982), 103 and 107.
3. Clarence B. Carson, A Basic History of the United States, vol. 1, The Colonial Experience, 1607-1774 (Wadley, Alabama: American Textbook Committee, 1983), 160; James M. Tunnell, Jr., “John Dickinson and the Federal Constitution,” Delaware History 6 (1955), 288-293; Milton E. Flower, John Dickinson: Conservative Revolutionary (Charlottesville, VA: University Press of Virginia, 1983), 250-53.
4. George Washington to John Vaughan, April 2, 1788, in John C. Fitzpatrick, ed., The Writings of George Washington (Washington, D.C.: Government Printing Office, 1931-44), 29:468.
5. McDonald, “John Dickinson, Founding Father,” 38.
6. John Dickinson, The Letters of Fabius, in Paul L. Ford, ed., Pamphlets on the Constitution of the United States (New York: DaCapo Press, 1968), 163-216. It should be noted that Dickinson’s intentions in writing the Fabius Letters were different from those of the authors of the Federalist Papers. Dickinson observed that other writers had commented at length on particular aspects of the Constitution. What Dickinson wished to do, he said, was “to simplify the subject, so as to facilitate the inquiries of his fellow citizens” (Letter I).
7. Letter I.
8. Letters II and III.
9. Letter II.
10. Dickinson’s concern with corruption reflects classical republican theory. See Zera S. Fink, Classical Republicans, and Isaac Kramnick, Bolingbroke and His Circle: The Politics of Nostalgia in the Age of Walpole (Cambridge, MA: Harvard University Press, 1968).
11. The widespread corruption that was endemic to elections in Great Britain was well known to his audience, and in fact, a significant element of “country party” Whig rhetoric.
12. Letters II and VIII.
13. Letter VIII.
14. Letters II and IV.
15. Letter IV.
16. Letters III and V. Forrest McDonald argues that Dickinson’s concerns about “licentiousness, vice, luxury, corruption, and tyranny” are merely a rhetorical strategy designed to appeal to the “country party” Whigs among the Anti-Federalist camp, by using the “emotionally ladened catchwords” that were familiar to them—thereby turning their own arguments against them. My own view is that Dickinson genuinely shared these concerns of the Anti-Federalists, but saw the Constitution as the best means to confront these evils. (See McDonald, “John Dickinson, Founding Father,” 38.)
17. Letter III.
18. Letter III.
19. Hutson, Documents VIII and XI.
20. Letter III.
21. Letter III
22. Letter VIII. In his second series of Fabius Letters, written several years later, Dickinson would make clear the duties that accompany liberty and prosperity. He would write that,
Of all national powers, that which is chiefly derived from commercial resources, seems to be the most precarious…. It must be exercised not only with great wisdom, but also with great virtue; that is, it must be beneficial to others, as well as profitable to the people possessing it, or it cannot be permanent. Our Creator never made individuals or nations, to be kind to themselves only. When attended with eminent success, it is apt to generate a spirit of pride, dissipation, insolence, rashness, rapaciousness, and cruelty. The eagerness for wealth, increases with amassment. It rages. It is a pestilence. Altered nations preserve scarcely a resemblence of themselves. Hardly a feature of their promising youth, remains in their debauched manhood. They, who were worthily diligent and decently frugal, become wickedly active and impudently avaricious: and they who nobly defended their own liberty, deem it glorious to destroy the liberty of others. With them, justice is a restraint: Benevolence a weakness. To use an expression of Thucydides, “Nothing is thought dishonorable that is pleasing, nothing iniquitous that is gainful” (The Letters of Fabius in 1797: Containing Remarks on the Present Situation of Public Affairs [Wilmington, 1797], Letter VIII).
23. Forrest McDonald, The American Presidency: An Intellectual History (Lawrence, Kansas: The University Press of Kansas, 1985), 36.
24. Russell Kirk, The Roots of American Order (Malibu, California: Pepperdine University Press, 1978), 371.
25. Edmund Burke, Reflections on the Revolution in France, ed. Conor Cruise O’Brien (New York: Penguin Books, 1969), 194-96. In Letter IV, Fabius writes that,
[Government] is intended for the benefit of the governed; of course it can have no just powers but what conduce to that end: and the awfulness of the trust is demonstrated in this—that it is founded on the nature of man, that is, on the will of his Maker, and is therefore sacred. It is then an offense against Heaven, to violate that trust.
26. Peter Stanlis, “Burke, Babbitt, and Rousseau: The Moral Nature of Man,” in George A. Panichas and Claes G. Ryn, eds., Irving Babbitt in Our Time (Washington, D.C.: The Catholic University of America Press, 1986), 131.
27. Letters III and V.
28. Letter III. Compare Washington’s statement that “Arbitrary power is most easily established on the ruins of liberty abused to licentiousness,” in Southern Partisan, XV (4th Quarter 1995): 25.
29. Letters IV and VI.
30. Letter IV.
31. Letter IV. Although the construction of the sentence makes it somewhat difficult to interpret definitively, it appears that both the president and the judiciary are to play a role in both the execution of the laws and in the determination of their constitutionality. Dickinson’s apparent characterization of the judiciary in this manner is somewhat surprising. Despite his own opposition in the Convention to the judiciary passing judgment on the constitutionality of laws, and the lack of any such specific power in the document itself, Dickinson apparently believed that the judiciary branch had that power under the Constitution. For a view different from my own, see M. E. Bradford, “A Better Guide Than Reason: The Politics of John Dickinson,” in A Better Guide Than Reason: Studies in the American Revolution (LaSalle, Illinois: Sherwood Sugden and Co., 1979), 92. For a discussion of the controversy during the early years of the republic over which branch(es) of the government was (were) responsible for determining the constitutionality of laws, see McDonald, American Presidency, 267-71.
32. Letter V; Aristotle, Politics, Bk. III, ch.4.
33. Letter V.
34. For an account of the difference between representative democracy, as envisioned by the Framers, and the plebiscitary democracy against which Fabius warns his readers, see Claes G. Ryn, The New Jacobinism: Can Democracy Survive? (Washington, D.C.: National Humanities Institute, 1991) and his Democracy and the Ethical Life: A Philosophy of Politics and Community (Washington, D.C.: The Catholic University of America Press, 1990), ch. XI.
35. Letter VII.
36. Letter VIII.
37. Letter IX. This enumeration of the powers of the British monarch and the overall tone of the passage are interesting because they indicate the Framers’ intent regarding the limits of presidential authority. It should be noted that almost all of the powers listed here as possessed by the British monarch are either specifically listed among the enumerated powers of Congress (Article I, Section 8) or, as in the case of the granting of titles of nobility, specifically prohibited by the Constitution. In particular, his statement that the British monarch “can, at his will, make war” is worth noting. The tone of the passage would suggest that the president has no authority to commit the nation to war ‘‘at his will’’ without the express consent of Congress. This view is supported by Farrand’s account of the debate on whether or not to use the phrase “make war” or “declare war” in Article I, Section 8, specifying the powers of Congress. Charles Pinckney opposed giving to Congress as a whole the power to commit the nation to war, believing that it should be vested in the Senate alone. Pierce Butler objected and argued for vesting the power in the president, who, he said, “will have all the requisite qualities, and will not make war but when the Nation will support it.” Elbridge Gerry expressed disbelief, saying that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Both Gerry and James Madison then moved to insert “declare,” striking out “make” war, leaving to the executive the power to repel sudden attacks. Roger Sherman agreed, arguing that the president should be able to repel attacks but not to commence war, and the motion was adopted seven states to two, with one abstention (Max Farrand, Records of the Federal Convention, 11:318-19).
For a discussion of the respective roles of Congress and the president in committing the nation to war, see Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kansas: The University Press of Kansas, 1985), 247-49.
38. Letter IV.
39. Letter VIII.
40. Letters IV and IX. It is ironic that James M. Tunnell, Jr., in his essay “John Dickinson and the Federal Constitution,” Delaware History 6 (1955):288-93, cites as one of the great virtues of the Constitution its “quality of elasticity,” since there appears to be little reason to believe that Dickinson himself would have shared that view. Nor is it accurate to characterize Dickinson’s position as that of either a champion of states’ rights and state sovereignty or an ardent nationalist (compare, for example, John Powell, “John Dickinson and the Constitution,” Pennsylvania Magazine of History and Biography, LX [1936]:8-9, and James H. Hutson, “John Dickinson at the Federal Constitutional Convention,” William and Mary Quarterly 40 [April 1983]:256-82). Neither of these views adequately reflects the subtlety of Dickinson’s thought.
41. See, for example, Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988); Charles Kesler, “The Higher Law and ‘Original Intent’: The Challenge for Conservatism,” The Intercollegiate Review 22, No. 2 (Spring 1987); and Mortimer J. Adler, We Hold These Truths: Understanding the Ideas and Ideals of the Constitution (New York: Macmillan, 1987). These scholars tend to filter their reading of the Constitution through the second paragraph of the Declaration of Independence, particularly the “all men are created equal” clause, in order to interpret the Constitution as a document designed to secure the “Rights of Man.”
Martin Diamond also tends toward a nationalist interpretation of the Federalist Papers, minimizing the importance of the states in the federal system. See, for example, Martin Diamond, “Democracy and The Federalist: A Reconsideration of the Framers’ Intent,” American Political Science Review LIII [March 1959]: 52-68.
It must be admitted that there is a certain ambiguity in the Federalist, and some passages do appear to sanction an ever-expanding federal role. In fact, Richard Morris has pointed out that some scholars have discovered a “split personality” in the Federalist, due to the fact that Madison’s contributions are more “federalist” than those of Hamilton (which are more nationalistic and centralizing in tone) (Richard B. Morris, Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution [New York: New American Library, 1985], 94-95).
Similarly, Albert Furtwangler has noted the different interpretations to which passages in the Federalist could be subjected, even by their authors. Both Madison and Hamilton used them to refute the other’s position in an early controversy over the power of the president to unilaterally declare neutrality. Furtwangler argues, however, that, while there is not a perfect consistency in the arguments presented in the Federalist, taken as a whole the papers are remarkably consistent. For this reason, he says, the Federalist resists dismemberment and is not fairly represented by any one paper in isolation from those surrounding it (Albert Furtwangler, The Authority of Publius: A Reading of the Federalist Papers [Ithaca, N.Y.: Cornell University Press, 1984], esp. 17-44 and 146-48). While I essentially agree with Furtwangler’s position, it might be argued that because the Fabius Letters come from the hand of a single author (and one who was influential in the drafting of the Constitution), these letters are perhaps more consistent in their argument than the work of “Publius.” If so, then the Letters of Fabius are far more deserving of the attention of constitutional scholars than they have received to date.
42. For a systematic analysis of the work of Publius which justifies this interpretation, see my “Virtue, Wisdom, and Experience, Not Abstract Rights, Form the Basis of the American Republic,” Humanitas, V, no. 1 (Winter 1991), 1-8.
The featured image is a portrait of John Dickinson (1820), printed by H.B. Hall, J.B. Forrest and Max Rosenthal, and is in the public domain, courtesy of Wikimedia Commons.
