The Forgotten Constitutionalist

Susan McWilliams Barndt is chair and professor of politics at Pomona College. She is a regular contributor to The Constitutionalist.

John Dickinson is probably the most important American founder you’ve never heard of, or never thought much about. 

Dickinson has faded into obscurity in part because, as his biographer Jane Calvert has put it, his “contemporaries were not ready for many of his ideas.” But we’re ready for them – we’re in need of them – now.

Now, even though you may not have heard of John Dickinson, you have heard some of his words.

Known in his own time as “The Penman of the Revolution,” Dickinson was the key author of (among other things): the Letters from a Farmer in Pennsylvania, The Liberty Song,” 1774’s Petition to the King, 1775’s Olive Branch Petition, the Declaration of the Causes of and Necessity of Taking Up Arms, and the Articles of Confederation. He also helped draft the United States Constitution and wrote The Letters of Fabius, a series of pseudonymous letters arguing on behalf of constitutional ratification.

Dickinson was also a member of both the First and Second Constitutional Congress, an officer during the American Revolution, the President of Delaware, the President of Pennsylvania, and a delegate to the Constitutional Convention from the State of Delaware. It seems likely that Delaware became the first state to ratify the United States Constitution because of Dickinson’s influence.

In other words: there’s not a moment in the framing of the United States without John Dickinson’s handprints on it. And his contemporaries thought he would be forever recognized for that. When Dickinson died, in 1808, then-President Thomas Jefferson wrote: “Among the first of the advocates for the rights of his country when assailed by Great Britain, he continued to the last the orthodox advocate of the true principles of our new government: and his name will be consecrated in history as one of the great worthies of the revolution.”

But history hasn’t quite consecrated his name, unless you count Dickinson College and his caricaturish portrayal in the musical 1776

That’s a shame, because Dickinson is the American founder that I think America could most use in this moment. And we need him most for the same reasons that historians (with the notable exception of Calvert) have neglected him: that he confounds some of the conventional ways Americans think about the founding.

For one thing, Dickinson – who was greatly influenced by Quakerism – was arguably the most egalitarian of the founding fathers.  Dickinson objected to property qualifications for voting, and he shepherded into law some of the first rules extending the franchise beyond white, male property owners.

Dickinson was an early feminist. He pressed for women’s political and legal rights in a way unequalled by almost all the other American founders. Dickinson even – like the Quakers who used “thee” and “thou” to get around various status distinctions baked into the English language – care about pronouns. Note that the Articles of Confederation, of which Dickinson was the primary author, are based on the concept of the “person,” not the “man.” Dickinson was so notorious for his refusal to write in the gendered language of the time, that when he wanted to keep his authorship of The Letters of Fabius secret, he had to switch to using all-masculine language.

And although Dickinson was born into a slaveholding family, he became an ardent opponent of slavery. He was the only one of the founders to free his slaves in the period between 1776 and 1786. In the Constitutional Convention, Dickinson was one of the only delegates to object to slavery on principle, and he moved to have it prohibited in the Constitution. (That motion resulted, eventually, in the one provision of the Constitution – Article 1, Section 9 – that, by prohibiting the importation of slaves after 1808, put limits on the trafficking of human beings.)

Later, after the Constitution was ratified, Dickinson dedicated a disproportionate share of his public energy to ending human enslavement. This included his attempt, as President of Delaware, to pass an abolition law. 

Dickinson’s commitments thus challenge certain popular arguments about the founding. Against a crude identity-politics reading of the founding – the argument that the founders, as property-owning white men, were all interested in protecting the status of property-owning white men – Dickinson stands as a key counter-example. 

At the same time, Dickinson’s example does shame his contemporaries – perhaps none more than Jefferson, who also called slavery a “moral depravity” but never stopped enslaving people. Dickinson’s example makes it hard to mount an easy defense of Jefferson (and others), especially those that posit manumission as logistically difficult or even practically impossible.

What Dickinson’s example does do, especially vis-à-vis other founding fathers, is compel us to ask questions that get us beyond such simplifying readings and into the realm of moral contemplation: What was the nature of Dickinson’s convictions, that he was able to see in ways we now recognize as broader and more just? What made his thinking different from that of other founding fathers? How was he able to think beyond his social circumstances, or the dominant political thinking of the time? 

Dickinson brings us beyond, in other words, mere dismissal or defense of the American founders – into an appreciation of their own intellectual diversity and political variety, in ways that can help us think better about not just the possibilities of that moment but the possibilities of our own.

To offer one more example: Dickinson is the American founder who challenges the conventional dichotomy between “originalists” and “living constitutionalists” in American constitutional interpretation. 

By that I mean that Dickinson, who as a delegate to the Constitutional Convention is responsible for its “original meaning,” argued that what would provide the document’s durability was energetic public engagement with it – an engagement premised on the awareness that even a pretty good Constitution can produce pretty bad political outcomes over time. 

In his Letters of Fabius, Dickinson’s defense of constitutional ratification, Dickinson talks at length about how all constitutions and systems of government are imperfect. Perhaps the best government in history, he says, was the Achean League of ancient Greece, but “it is not pretended that the Achean League was perfect.” Nor is the new Constitution. 

So although – even though Dickinson takes the core design of the Constitution to be defensible – he emphasizes its imperfection. (I suspect that in Dickinson’s own mind, the 3/5 clause is a big part of the reason for this emphasis.) Dickinson talks about how there are bound to be bad administrations, unforeseen developments, and difficult circumstances that require serious constitutional reckoning.

In such circumstances, Dickinson writes, it rests on the living American people to assume their role as the sovereign authority of the nation:

“Political bodies are properly said to be balanced, with respect to this primary origination and ultimate destination, not to any intrinsic or constitutional properties. It is the power from which they proceed, and which they serve, that truly right and of right balances them.”

While Dickinson does advocate attention to the “sentiments and examples of our forefathers,” he thinks it foolish to look only to the past in making constitutional judgements. In a terrific, extended essay on Dickinson’s constitutionalism, Gregory Ahern puts it this way:

“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.

In other words, both the underlying spirits of originalism and living constitutionalism bear upon us. And to disregard – or just to mock – either is to exercise poor political judgment. Against the dichotomy that contemporary pundits want to enforce in matters of constitutional interpretation, John Dickinson calls us toward greater fields of vision.

John Dickinson’s political thought is not easy. It does not allow us to engage in simple or polarizing approaches to the practice of politics, nor in simple or polarizing approaches to the study of American history. In this time of so much oversimplification and polarization, his founding vision should be, I think, found again.

One thought on “The Forgotten Constitutionalist

  1. Wonderful piece on Dickinson. It educated me on an extremely important founding father and how he could not be pigeon holed. He was definitely forward thinking and well before his times.

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