by Ray Raphael
4.The following day in Connecticut, on the road from Norfolk (now home to Xerox Corporation) to Fairfield (where General Electric is headquartered), he noted: “We found all the farmers busily employed in gathering, grinding, and expressing the juice of their apples; the crop of which they say is rather above mediocrity. The average wheat crop they add, is about 15 bushels to the acre from their fallow land—often 20 & from that to 25…. The principle export from Norwalk & Fairfield is horses and cattle—salted beef & porke, lumber & Indian corn, to the West Indies—and in a small degree wheat and flour.” Donald Jackson and Dorothy Twohig, eds., The Diaries of George Washington (Charlottesville: University Press of Virginia, 1979), 5:461–62. I treat the differences between then and now, particularly with respect to the presidency, more extensively in Ray Raphael, Mr. President: How and Why the Founders Created a Chief Executive (New York: Knopf, 2012), 268–80.
5.One explicit example: Article IV, Section 4 guarantees that the United States government, at the request of a state legislature, will offer protection against “domestic violence.” Today, “domestic violence” denotes intrafamily conflict such as spousal abuse; then, it meant riots or insurrection.
6.This iconic opening line from L.P. Hartley’s 1953 novel The Go-Between yields over one-half a million Google entries (accessed August 21, 2012).
1. A Revolution in Favor of Government
1.At http://www.jamesmadison.com/about.html (accessed January 10, 2012).
2.Redwood Times (CA), March 22, 2011.
3.Prior to the congressional Declaration of Independence, scores of state and local bodies issued their own declarations, proclaiming they were ready to break from Britain and instructing their representatives to higher bodies to act accordingly. As they did so, however, they insisted on the right of self-governance at the state level; they were not about to relinquish their political independence, even to other Americans. “Sole and exclusive right” comes from the Congress of North Carolina, April 12, 1776, reprinted in Peter Force, ed., American Archives, Fourth Series: A Documentary History of the English Colonies in North America from the King’s Message to Parliament of Marcy 7/74, to the Declaration of Independence by the United States (New York: Johnson Reprint Company, 1972; first published 1833–46), 5:860.
4.Delegates used the word “vigor,” always referring to what they wanted from government, a dozen times, and “energy” or “energetic” twenty-five times. See the searchable Farrand, Records of Federal Convention, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1785&Itemid=27.
5.Quoted in the frontispiece to Max M. Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003).
6.Avalon Project, Yale Law School, http://avalon.law.yale.edu/17th_century/mayflower.asp.
7.Kenneth Colegrove, “New England Town Mandates,” Colonial Society of Massachusetts, Publications 21 (1919): 428–37 (accessible online through Google Books at http://is.gd/ivsat); Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), 212–13; William Lincoln, History of Worcester, Massachusetts, from Its Earliest Settlement to September, 1836 (Worcester, MA: Charles Hersey, 1862), 66–68. For a more complete discussion of instructions from New England town meetings, see Ray Raphael, “The Democratic Moment: The Revolution and Popular Politics,” in Edward G. Gray and Jane Kamensky, eds., The Oxford Handbook to the American Revolution (New York: Oxford University Press, 2012).
8.Evarts B. Greene, The Provincial Governor in the English Colonies of North America (New York: Russell & Russell, 1966), 67–68.
9.For the move to Raleigh Tavern, see William J. Van Schreeven, Robert L. Scribner, and Brent Tarter, eds., Revolutionary Virginia: The Road to Independence; A Documentary Record (Charlottesville: University Press of Virginia, 1973), 1:69–77; for the Salem incident, see Ray Raphael, The First American Revolution (New York: The New Press, 2002), 90–95.
10.For Worcester’s instructions, see Raphael, First American Revolution, 159. For the state and local declarations of independence, see Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Vintage, 1998).
11.See note 2 above.
12.Journals of Continental Congress, 1:15–24. Even Congress’s Continental Association, which called for a boycott of British goods, was no more a “law” than were previous local associations. It was an agreement among subscribing members, who in this case were delegates representing the provincial assemblies, congresses, and conventions in their respective colonies. For any of Congress’s measures to be considered laws, Congress would have to declare itself a government, which of course it was not ready to do.
13.William Lincoln, ed., The Journals of Each Provincial Congress of Massachusetts in 1774 and 1775, and of the Committee of Safety, with an Appendix, containing the Proceedings of the County Conventions (Boston: Dutton and Wentworth, 1838), 231.
14.Dickinson’s draft appears in Letters of Delegates to Congress, Library of Congress, American Memory, http://memory.loc.gov/ammem/amlaw/lwdglink.html, 4:432–50.
15.Gouverneur Morris to Matthew Ridley, August 6, 1782, quoted in James J. Kirschke, Gouverneur Morris: Author, Statesman, and Man of the World (New York: St. Martin’s Press, 2005), 146.
16.“His Excellency General Washington’s LAST LEGACY,” broadside printed on June 11, 1783, reproduced in Library of Congress, American Memory, Printed Ephemera, search for “legacy,” http://memory.loc.gov/cgi-bin/query.
17.The legacy letter also appears in Washington, Writings, 26:483–96, or above as appendix B.
18.Washington to James Warren, October 7, 1785, Washington, Papers (CS), 3:299–300. To Warren, Washington expressed his amazement that antigovernment sentiments would continue, now that citizens chose their own rulers: “[I]t is one of the most extraordinary things in nature, that we should Confederate for National purposes, and yet be afraid to give the rulers thereof who are the creatures of our own making—appointed for limited and short duration—who are amenable for every action—recallable at any moment—and subject to all the evils they may be instrumental in producing, sufficient powers to order & direct the affairs of that Nation.” Note the phrases “appointed by limited and short duration” and “recallable at any moment.” According to the Articles of Confederation, state legislatures were to select their delegates to Congress annually and could recall them “at any time within the year.” Further, “no person shall be capable of being a delegate for more than three years in any term of six years.”
19.David Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980), 57–59, 123–26.
20.Washington to Knox, December 26, 1786, and February 3, 1787, Washington, Papers (CS), 4:481 and 5:7–8.
21.Journals of Continental Congress, 32:73–74. Congress was responding to a call for a convention issued by a prior convention, held in Annapolis the preceding September. Only twelve delegates from five states had attended the first attempt to consider revisions to the Articles of Confederation, but the fears stirred by civil unrest that fall and winter led to a wider response to the second convention.
22.Knox to Washington, January 14, 1787, Washington, Papers (CS), 4:520–22.
23.Washington to Knox, February 3, 1787, Washington, Papers (CS), 5:9.
24.Washington to Knox, April 2, 1787, and Knox to Washington, April 9, 1787, Washington, Papers (CS), 5:119 and 134. For a full rendering of Washington’s decision to attend, see Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 18–23.
25.Madison, Notes of Debates, May 29.
26.Ibid., May 30.
27.Ibid., May 30.
28.Washington to James Warren, October 7, 1785, and Washington to John Jay, August 15, 1786, Washington, Papers (CS), 3:300 and 4:212.
2. Taxes
2.At http://biggovernment.com/tdelbeccaro/2010/04/15/top-10-anti-tax-quotations-annotated/.
3.Parliament could and did levy impost duties to regulate commerce, but it was not supposed to do this with the chief goal of raising revenue.
4.A broader statement would be, “To taxes and the desire to regulate commerce we owe our Constitution,” but taxes and commercial regulation were intricately intertwined.
5.Alvin Rabushka, Taxation in Colonial America (Princeton, NJ: Princeton University Press, 2008), 168–71, 234–35, 244, 268; Sidney Ratner, American Taxation: Its History as a Social Force in Democracy (New York: Norton, 1942), 51–52.
6.E. James Ferguson, The Power of the Purse: A History of American Public Finance, 1776–1790 (Chapel Hill: University of North Carolina Press, 1961), 7–10.
7.Ferguson, Power of the Purse, 27–32.
8.Benjamin Franklin to Samuel Cooper, April 22, 1779, quoted in Ferguson, Power of the Purse, 48.
9.Robert Morris, The Papers of Robert Morris, 1781–1784, ed. E. James Ferguson (Pittsburgh: University of Pittsburgh Press, 1973), 1:70, 397. While the impost of 1783 encountered resistance in Rhode Island and Virginia, New York was the final holdout (DHRC, 13:147).
10.Edling, Revolution in Favor of Government, 154–55; Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007), 65–82; Journals of Continental Congress, 30:72.
11.Madison, Papers, 9:348. Washington thought the weakness of Congress and its inability to raise money were ruining the nation’s credit, and with it the nation’s future: “That our resources are ample, & encreasing, none can deny. But whilst they are grudgingly applied, or not applied at all, we give the vital stab to the public credit, and must sink into contempt in the eyes of Europe” (Washington to James Warren, October 7, 1785, Washington, Papers [CS], 3:299).
12.The precise definition of “direct tax” caused some confusion. Did the term denote poll and property taxes (the common usage at the time), or did it refer to the relationship between the taxing body and those whom it taxed? The delegates themselves had some difficulty deciphering what they meant by “direct tax.” On August 20 Madison jotted this curious entry into his notes: “Mr KING asked what was the precise meaning of direct taxation. No one answered.”
13.DHRC, 15:19 and 22. In Delaware, which ratified the Constitution five days before Pennsylvania, there was no significant opposition.
14.For the various amendments relevant to taxation proposed at state ratification conventions, see Veit et al., Bill of Rights, 14, 15, 16, 19, 24; Schwartz, Bill of Rights, 2:665, 713, 757, 760, 841, 843, 914–15, and 969.
15.DHRC, 9:1045, 1063.
16.Virginia Convention, June 11 in DHRC, 9:1156–57. Also in Kurland and Lerner, Founders’ Constitution, 2:438–39 (Article 1, Section 8, Clause 1, Document 16).
17.Virginia Convention, June 7, DHRC, 1016–28. Also in Kurland and Lerner, Founders’ Constitution, 2:433–35 (Article 1, Section 8, Clause 1, Document 16).
18.DHRC, 10:1548–54. Also in Veit et al., Bill of Rights, 17–19; Schwartz, Bill of Rights, 2:841, 843.
19.Annals of Congress, 1:803–4.
20.Ibid., 1:807 (House vote) and 1:78 (Senate vote). The “antitax crusaders,” as I call them, were not opposed to all taxes, just federal taxes; in fact, one of their major complaints was that federal taxation would hamper the ability of the states to levy and collect taxes. Politically, though, they can be viewed as antecedents to antitax crusaders of today, whose resistance to taxation is colored by the desire to limit federal authority. Even after the matter appeared settled, some opponents of unrestricted federal taxation refused to accept Congress’s decision as the final word. Later that year Hardin Burnley wrote to Madison, “Whatever may be the fate of the amendments submitted by Congress it is probable that an application for further amendments will be made by this assembly [Virginia], for the opposition to the Foederal Constitution is in my opinion reduced to a single point, the power of direct taxation” (Burnley to Madison, November 28, 1789, in Schwartz, Bill of Rights, 2:1188). Since the framers had taken care to provide for two different ways of initiating amendments, through Congress or through state legislatures, the state legislators could have kept the issue of taxation alive, but they didn’t, and the Constitution, as drafted by the framers and approved by a sufficient number of ratification conventions, remained unaltered.
21.Hamilton was not the first to suggest liquor as a source of income for the federal government. Back in 1750, when Benjamin Franklin first contemplated an American confederacy that would soon be called the Albany Plan, he proposed to finance the costs of administration by duties on imported liquor, license fees for public houses, and an excise tax on all liquor, foreign or domestic. Both Franklin and Hamilton considered liquor taxes the easiest to impose; theoretically, people who didn’t want to pay the tax could cease consuming alcohol, but in fact they wouldn’t, so government coffers could be filled. Franklin to James Parker, March 20, 1750 or 1751, in Franklin, Papers, 4:119.
22.The framers of the Constitution had hoped to prevent this, but they hadn’t. The document they created required the liquor excise to be uniform throughout the states, which it was. The tax on “spirits” did vary according to the strength of the brew, from nine cents to twenty-five cents per gallon, but it did not vary according to the place it was produced or sold. It might have been unfair and politically destructive, but it was not unconstitutional (Statutes at Large, 1st Cong., 3rd sess., 1:203).
23.David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), 183–86; Annals of Congress, 4:644–45; Hylton v. U.S., 3 U.S. 171 (1796), http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=3&invol=171.
24.Unlike Congress in 1798, colonial assemblies did not establish progressively higher rates, but even so, the very nature of property taxes, the major source of revenue in the North, was to levy increased taxes for larger holdings. In the South, landed interests that held political power relied more on regressive poll taxes.
25.In 1780 Gouverneur Morris had proposed the idea of a specific tax on windows, and on March 8, 1783, Superintendent of Finance Robert Morris had suggested to Congress a sharply graduated tax on the number of glazed windows: no tax for the first five, 50 cents for fewer than ten, and then increasing steadily, peaking at $100 for a seventy-window mansion (Morris, Papers, 7:525–30, 537).
26.Statutes at Large, 5th Cong., 2nd sess., 1:597–604.
27.Ratner, American Taxation, 53–56; Statutes at Large, 37th Cong., 2nd sess., 12:473. The Civil War income tax was an integral component of a sweeping tax bill that included a stamp tax, an inheritance tax, and all sorts of excises and licensing fees. In 1881, in Springer v. United States, the Supreme Court stated explicitly that income taxes were to be considered indirect, not direct. This decision was based in part on earlier holdings that only poll and property taxes could be considered direct: Hylton v. United States (1796), Pacific Insurance Co. v. Soule (1868), Veazie Bank v. Fenno (1869), and Scholey v. Rew (1874). For Springer, see http://caselaw.lp.findlaw.com/scripts/getcase.pl?case=/us/102/586.html&court=US&navby=search.
28.Pollock v. Farmers’ Loan and Trust Company, Legal Information Institute, Cornell University Law School, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0157_0429_ZO.html.
29.Robin Leigh Einhorn, American Taxation, American Slavery (Chicago: University of Chicago Press, 2006), 159. Chief Justice Melville Fuller, in the majority opinion for the Pollock case, contended, “Nothing can be clearer than that what the Constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and property within any State through a majority made up from the other States. It is true that the effect of requiring direct taxes to be apportioned among the States in pro
portion to their population is necessarily that the amount of taxes on the individual taxpayer in a State having the taxable subject matter to a larger extent in proportion to its population than another State has would be less than in such other State, but this inequality must be held to have been contemplated, and was manifestly designed to operate to restrain the exercise of the power of direct taxation to extraordinary emergencies, and to prevent an attack upon accumulated property by mere force of numbers” (emphases added). This explanation is purely conjectural and makes no sense. Writers of constitutions do not knowingly mandate two principles that contradict each other with the mere hope that this will rarely come to pass. In fact, both provisions resulted from compromises (see chapter 3), and it is altogether possible that delegates failed to notice that adherence to one contradicted the spirit of the other. Technically, there is one interpretation by which the two provisions would not directly contradict each other. Article I, Section 8, Clause 1 states only that “all Duties, Imposts, and Excises shall be uniform throughout the United States”—it does not use the word “taxes” here, although it does refer to taxes earlier in the sentence when outlining the powers of Congress. It is conceivable that this omission was purposive in order to allow nonuniformity for taxes that might be apportioned but, if so, the framers probably did not envision that apportionment would result in citizens from some states being taxed at twice the rate of others merely by virtue of their place of residence.
30.Washington to the People of the United States, September 19, 1796, http://avalon.law.yale.edu/18th_century/washing.asp.