The Fourth Amendment and querying the 702 database for evidence of crimes

(Michael Williamson/The Washington Post)

An interesting Fourth Amendment issue has come up in debates over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. This is the authority, some will recall, that allows the government to collect from inside the United States the contents of communications of foreigners reasonably believed to be outside the United States without obtaining a warrant. Here’s the question, as I understand it: If a foreigner (a non-United-States person, in the statute) is communicating with a U.S. citizen inside the United States, and the government has collected the communications between them under Section 702 by targeting the foreigner, what are the Fourth Amendment limits on querying the database to find evidence of criminal activity committed implicating the United States person? In other words, after the government has collected the contents under the national security authorities based on the non-U.S. person, what are the limits on switching over to a criminal query that targets the U.S. person?

As I understand the intelligence community’s position, it takes the view that querying the database is always okay because it’s not an additional Fourth Amendment search. The Fourth Amendment governs collection of the contents of the communications, but not the separate query. From Q&A posted earlier this year:

Querying databases containing Section 702 information does not result in any new acquisition of data; it is instead only an examination or re-examination of previously acquired information. Therefore, those queries are not separate “searches” for Fourth Amendment purposes. The IC queries its databases to more quickly and efficiently sort and identify communications already lawfully collected, such as information potentially related to a terrorist plot against the United States, without having to sift through each individual communication that has been collected.

I don’t find this persuasive. As I understand this, Section 702 raw data has been collected but not yet observed. In Fourth Amendment law, it has been “seized” but not “searched.” See Soldal v. Cook County (1992). As a result, the data maintains the Fourth Amendment protection it had before it was copied.

It’s true that, after data has been exposed to human observation, it has been searched and Fourth Amendment search rights expire. Once that exposure has happened, the data can be used and reanalyzed in any way the government wants without it being another search. See Illinois v. Andreas (1983). But the mere copying of data without human observation is a seizure but not a search, I think. That’s why courts scrutinize how the government searches images of seized hard drives or the copies of email accounts obtained from service providers. If the data has been copied but not searched, querying it is a search. Or so it seems to me.

Granted, there is a circuit split right now on the private-search reconstruction doctrine that might be relevant. The split concerns how much is “searched” when a private party sees a file on the hard drive: Is just the exposed data searched, or the file, or even the entire physical storage device? It’s fair to assume, although not entirely obvious, that the answer to that also sheds light on what is searched in the government context. But even so, it seems hard to believe that a court would say that observing some files in a massive government database of unsearched contents extinguishes all Fourth Amendment rights in that data.

If I’m right about that, then the query through the raw 702 database requires its own Fourth Amendment justification. I’m not sure what warrant exception could apply, though. It’s a query for criminal investigative purposes, as I understand the hypo, so no national security reasonableness exception could apply. It’s targeting the U.S. person’s communications, so presumably it’s outside the reasonableness framework unpersuasively invented by the Ninth Circuit in the Mohamud case. Maybe there’s some other way to get around a Fourth Amendment warrant requirement here, but it’s not clear to me what it is.

I’m not saying I have the answers to this question. And maybe I am misunderstanding the question itself. But based on the public discussions I have seen about what is happening, I worry that there is a lot more of Fourth Amendment concern here than the government is acknowledging.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/20/the-fourth-amendment-and-querying-the-702-database-for-evidence-of-crimes/

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Interesting obituary related to the Carswell Supreme Court nomination

From Adam Bernstein, writing in The Post today:

James E. Clayton, a judge’s son who in 1960 became The Washington Post’s first full-time U.S. Supreme Court reporter and later wrote stinging editorials that helped deny federal judge G. Harrold Carswell a seat on the high court in part because of his troubling record on civil rights, died Oct. 16 at a hospital in Arlington, Va. He was 87….

Mr. Clayton … soon began writing for The Post’s editorial page. His most distinguished work focused on Carswell, lambasting his legal record and personal judgment and denouncing his suitability for the most powerful court in the land.

The seat on the high court had been vacated in 1969 after associate justice Abe Fortas had been forced to resign amid accusations of financial impropriety, including the acceptance of a secret retainer of $20,000 from a foundation tied to a Wall Street financier convicted of securities violations.

President Richard M. Nixon’s first nominee, federal judge Clement F. Haynsworth Jr., was rejected by the Senate, by a 55 to 45 vote, after protests from labor and civil rights groups on his legal record.

Nixon next proposed Carswell, another conservative Southerner, who sat on the U.S. Court of Appeals for the 5th Circuit. Reporters uncovered old speeches in which Carswell promoted segregation and white supremacist views and noted his ownership and sale of land in Florida with a “whites only” covenant. Women’s activists highlighted what appeared to be his unsympathetic views toward female litigants. Legal peers also questioned his qualifications and noted his inordinately frequent reversals by higher courts….

“The evidence in this case is so strong, the record so clear that there should not be the slightest qualms in the Senate about rejecting this nomination outright,” Mr. Clayton wrote in one editorial. In other, he added: “To confirm him would be to send yet one more signal of indifference at best, and contempt at worst, not just for minorities already short on hope, but for values and institutions which are in urgent need of more, not less, respect.”

The Carswell nomination was, obviously, well before my time, but my sense is that the Haynsworth/Carswell episode was something of a landmark in recent Supreme Court history (the first time that Supreme Court nominations failed since Herbert Hoover’s 1930 nomination of John Parker, not counting the special case of Abe Fortas’s proposed promotion to chief justice).

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/20/interesting-obituary-related-to-the-carswell-supreme-court-nomination/

Hold music

I realize this might make me sound curmudgeonly, but here’s what strikes me as a needless source of annoyance: Hold music with vocals.

I’m fine with being put on hold occasionally, but I want to be able to work effectively while I’m waiting. That’s considerably harder, I think, when the hold music has vocals, rather than just unobtrusive instrumentals. The job of hold music should be to make callers feel confident that their calls haven’t been disconnected — not to entertain. Just some officious advice, hold music decision makers, from your friendly neighborhood blogger.

Also: Kids these days. Grrr. O tempora, o mores.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/20/hold-music/

Dickinson and the Fabius letters

Ill health motivated John Dickinson to leave the federal convention a day early. Before departing, he instructed his friend and Delaware colleague, George Read, to affix his signature to the document. There are, therefore, 39 signatures to the document but only 38 men physically signed.

In early 1788, Dickinson perceived that ratification momentum was slowing. Accordingly, he composed for publication nine letters written under the pseudonym Fabius. The “Letters of Fabius” were well-received and widely reprinted.

Unlike “The Federalist” or the “Aristides” essays of Alexander Contee Hanson, “Fabius” made no attempt to provide a comprehensive overview of the Constitution. The letters focused primarily on answering the Antifederalist contention that the Constitution was too “high-toned” and that its adoption would lead to aristocracy. If the reader reviews the Dickinson speech reported in my last post, he or she will see that Dickinson had anticipated this objection.

“Fabius” centered on a two-fold response. First, the rules governing the House, Senate and president assured popular control. House members would be elected directly to short terms, and one third of senators would be elected indirectly every two years. The president would be chosen by a method impervious to corruption; and although he enjoyed a veto, it was not absolute. The British had expanded and retained their liberties with far fewer democratic guarantees.

Second, freedom would be preserved by the confederal or federal (the words then were synonymous) nature of the system. In the original social compact, citizens donated certain rights or powers (words also then largely synonymous) to a central authority so as to protect retained rights/powers. Similarly, in a confederation, member states contributed rights/powers to a central authority so as to protect their remaining rights/powers.

But just as citizens are bound to be ever jealous of their rights and to check government accordingly, so also would the states be obligated to protect their reserved powers. “America is, and will be, divided into several sovereign states, each possessing every power proper for governing within its own limits for its own purposes, and also for acting as a member of the union.” Any states that allowed the federal government to interfere in their sovereign jurisdiction would be guilty of a breach of trust, for the “trustees or servants of the several states” were obliged to protect the authority citizens had placed in them. If state officials lose ground to the federal government, Dickinson maintained, “It will be their own faults.”

In addition to pressing his twofold argument, Dickinson made other points. One was the disadvantages of a confederation in which the central government had insufficient power. Dickinson cited both the Articles of Confederation and the fracture of two ancient Greek federations as examples. He also offered a positive case study: the 1707 union of England with Scotland. After reciting dire pre-union Scottish predictions his readers knew proved to be false, Dickinson identified the union’s benefits: the cultivation of virtues and correction of errors; protection for the lower classes; improvements in agriculture, science, arts, trade and manufacturing; the rule of law; peace and security at home, and increased respectability abroad. Amid the enjoyment of these benefits, the Scottish Church and laws, courts and judicature had remained established and secure.

A well-balanced confederation rendered all its members stronger. In modern terms, it reduced state shirking and free riding. Further, as in the human body, “A stroke, a touch upon any part, will be immediately felt by the whole.” A diseased member of the body severed from the rest could not recover, while one remaining connected could be saved.

Confederation was Dickinson’s answer to Montesquieu’s lament that a large territory cannot be governed by republican forms and that attempting to do so resulted in fragmentation or tyranny. Confederation, said Dickinson, would ensure that government was effective throughout American territory while still checking the urge to centralize. No confederation had ever featured the protections contained in the Constitution. If they proved inadequate, the Constitution provided yet another response: a method for adopting “amendments on the authority of the people.”

* * * *

The author of “Fabius” was nearing the end of contemporaneous life expectancy, but he went on to live two decades after the Fabius letters. During that time he maintained a large correspondence, including with Thomas Jefferson, who even as president always answered his letters.

In 1791-92, Dickinson served as president of the Delaware state constitutional convention, and briefly as a state senator thereafter. He wrote several articles and pamphlets, including new Fabius letters arguing for a pro-French foreign policy.

Most of his remaining life, however, was spent in retirement. He died in 1808 at age 75.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/20/dickinson-and-the-fabius-letters/

Ragtime!

I have tried, generally speaking, to restrain myself from going overboard in touting my son Sam’s many pianistic accomplishments, but if you like ragtime — and for goodness sake, who doesn’t like ragtime? — I heartily recommend Sam’s just-released recording (available on a pay-as-you-wish basis here) of piano rags.  The album features performances of seven of Sam Post’s original ragtime compositions, as well as some classics by Scott Joplin and William Bolcom (including two separate performances, with different improvisational flourishes, of Bolcom’s truly glorious  “Graceful Ghost Rag”).

I’ve spent a good deal of this past week listening to the album, and I can tell you that the music and the performances are terrific — infectious and delightful. Ragtime may well rank as America’s first great contribution to world music, and while it has fallen a bit off the radar in recent years, I smell a revival coming; when well-performed, it’s awfully hard resist its many charms. Have a listen — you’ll thank me!

In addition, as is Sam’s custom, he’s added some really interesting commentary addressing questions such as “what makes ragtime ragtime?” and “what’s the difference between syncopation and swing?” and “what’s the role of improvisation in ragtime performances?”

Finally if you’re in Washington this weekend, you might consider joining us at an “album release” house concert on Saturday evening (details here), while those of you in the Bay Area might be interested in a similar event in San Francisco on Saturday, Nov. 4 (details here).

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/19/ragtime/

Is the Supreme Court allergic to math?

The Supreme Court in 2012. (J. Scott Applewhite/Associated Press)

Yes, says Oliver Roeder,  in an interesting essay at fivethirtyeight.com. At least some of the justices, he suggests, have “a reluctance — even an allergy — to taking math and statistics seriously,” as evidenced most recently by their questions and comments at the Oct. 3 oral argument in the Supreme Court’s Gill v. Whitford “partisan gerrymandering” case.

As he himself acknowledges, he’s hardly the first to make the suggestion; there’s a rather substantial library of academic commentary on “innumeracy” at the court (and, more generally, throughout the judiciary). But I think he’s correct in pointing out the rather serious consequences this might have in the particular context of the court’s deliberations in Gill.

I have long been struck by the fact that it is unfortunately well within the norms of our legal culture — among lawyers, judges, law professors and law students — to treat mathematics and related disciplines as kinds of communicable diseases with which we want no part.  I wish I had a nickel for every time I heard a student or colleague or member of the bar say something like, “Oh, math! I don’t do math — that’s why I went to law school!” It is well known that the surest way to place three-quarters of your audience into shutdown mode in a law school class or legal conference is to introduce a formula, or a graph, or the results of some calculation.

Gill, as most of you are probably aware, involves a challenge to the Republican-dominated Wisconsin legislature’s 2011 redistricting map, a map that, according to the three-judge panel below, was both intended to, and did, systematically disadvantage Democratic voters and advantage Republican voters across the state. As evidence of the intent of the map’s drafter to “secure Republican control of the legislature for the decennial period,” the court noted that the redistricting committee had prepared a number of different maps, and that the one finally chosen was the one that, in the opinion of those who had constructed it, was, statistically speaking, the one most likely to produce a Republican-dominated legislature.

As evidence of the discriminatory effect, the court found that it was “clear that the drafters got what they intended to get” — a map that made it “more difficult for Democrats, compared to Republicans, to translate their votes into seats.” In the 2012 election, Republicans won 48.6 percent of the statewide vote, which gave them 61 percent of the seats in the state’s 99-seat assembly, and in the 2014 election, Republicans took 52 percent of the statewide vote and ended up with 64 percent of Wisconsin State Assembly seats. [Put differently, when the Democrats received 51.4 percent of the statewide vote in 2012, they ended up with 39 assembly seats; when the Republicans received around the same percentage (52 percent) in 2014, they ended up with 63 seats — a 24-seat disparity.]

Of course, one would hardly expect perfectly proportional results — 52 percent of the overall vote leading to 52 percent of the legislative seats — from any districting map; and “partisan gerrymandering” is, to some degree at least, an inherent feature of any system (like the one that pertains in most states) that puts the legislature in charge of constructing the maps. So the case, in essence, poses the question: How much is too much? And how do we know whether and when it’s too much?

Now, I’m not sure I agree with Roeder when he says that the case “hinges on math”; one could imagine the court declining to engage with the “how much is too much?” question on any number of grounds (such as the plaintiff’s standing to raise the claim, or the “justiciability” of political gerrymandering claims in general).

But it is certainly true that “how much is too much?” questions often (and sometimes only) can be profitably analyzed with the aid of mathematical tools. If you want to know if a building exceeds the local building-height limit, you pull out a ruler. It’s useful to have some way to measure the extent to which the Wisconsin map does, or does not, entrench Republican control by giving Republican votes greater “weight” than Democratic votes.

COMMENTERS PLEASE NOTE: You do not have to remind me that when they are in power, Democrats “do the same thing.” I recognize that; that is precisely what makes this case so important. Power will attempt to entrench itself by all possible means, and that is as objectionable when coming from either direction on the political spectrum. This is not a partisan issue; it is one that anyone who cares about democratic processes should care about; it it’s not your ox being gored today, it will be tomorrow, I promise you.

The court below used a number of such measures, all of which demonstrated the bias incorporated into the Wisconsin maps: the “mean-median” index, the “partisan bias” measure, and the much-discussed (and terribly-named) “efficiency gap” (EG). The EG measures the number of “wasted votes”; votes that would not have affected the outcome of the election had they not been cast. [For example, all votes for a candidate who received less than a majority are “wasted” in this sense, as are all votes for the winning candidate in excess of the 50 percent+1 needed to secure the election.] All elections will have large numbers of  wasted votes; the question, though, is whether the map is skewed in a manner that systematically wastes more Democratic votes than Republican votes (as the court below found that it was).

There are any number of questions one might have about how this phenomenon can be measured, and how particularly egregious violations of nonpartisanship can be identified. But the transcript of the oral argument here makes for rather depressing and disheartening reading. To my eyes, the argument shed less light than usual on the hard questions in the case, and the attitude of several of the justices towards the measurement question ranged, as Roeder suggests, from bemused befuddlement to outright hostility. Justices A. Alito Jr. and Neil M. Gorsuch pressed the challengers on whether any metric could ever serve as a constitutional bright line, and  Chief Justice John G. Roberts Jr. was particularly dismissive of what he called — rather oddly — “sociological gobbledygook” in the challengers’ arguments:

[If] you’re the intelligent man on the street and the Court issues a decision, and let’s say the Democrats win, and that person will say: Well, why did the Democrats win And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that’s a bunch of baloney. … And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.

That strikes me as a bit disingenuous. There are any number of opinions that the court (and the courts) issue that would leave the “intelligent man on the street” scratching his head, because of the presence of what we might call “legal gobbledygook,” and if Roberts is suggesting that the court’s use of objective mathematical indices of partisan asymmetry would be especially troublesome to the man on the street, I’m not convinced.

I think that perhaps Alito put his finger on what really troubles these metric skeptics: the fear that they will look ridiculous at some point down the road for having chosen a flawed measuring stick:

… gerrymandering is distasteful. But if we are going to impose a standard on the courts, it has to be something that’s manageable and it has to be something that’s sufficiently concrete so that the public reaction to decisions is not going to be the one that the Chief Justice mentioned, that this three-judge court decided this, that — this way because two of the three were appointed by a Republican president or two of the three were appointed by a Democratic President.

[Over the past 30 years] judges, scholars, legal scholars, political  scientists have been looking for a manageable  standard. All right. In 2014, a young researcher (Eric McGhee) publishes a paper, in  which he says that the leading measures previously,  symmetry and responsiveness, are inadequate. But I have discovered the key. I have  discovered the Rosetta stone and it’s — it is  the efficiency gap. And then a year later you bring this  suit and you say: There it is, that is the  constitutional standard. It’s been finally —  after 200 years, it’s been finally discovered in this paper by a young researcher …

Now, is this the time for us to jump into this? Has there been a great body of scholarship that has tested this efficiency gap? It’s full of questions. Mr. [Eric] McGhee’s own amicus brief outlines numerous unanswered questions with — with this theory.

It’s a legitimate concern, I suppose; as in many areas of the law where courts are presented with non-legal “expert” testimony, they should be wary of jumping too quickly into the fray, choosing one contested side over another given that they generally do not possess the tools with which to evaluate the pros and cons of the testimony presented.

But I do hope the court does not rest on this to abdicate its responsibility to craft some meaningful and manageable measures of partisan interference with the electoral process.

Many years ago, John Ely provided, notably in his book “Democracy and Distrust,”what I continue to regard as the most persuasive solution to the fundamental dilemma posed by the institution of (undemocratic) judicial review in a democracy, and the conflicts arising from allowing the most unrepresentative branch of the government the power to overturn actions taken by the more democratic branches. Ely argued, in essence, that the court’s appropriate role is that of referee in the electoral arena. Ordinary electoral processes can be relied on to self-correct, without the need for judicial intervention, most attempts by lawmakers to act outside of constitutional boundaries, except in those circumstances where either (a) those actions corrupt the electoral process itself and are, as a consequence, self-sustaining and uncorrectable, or  (b) the majority is withholding from the minority the protections it affords to itself. Electoral politics can’t correct these problems, which are inherent in the nature of representative democracies, and courts must step in.

The Warren court’s “one man-one vote” decisions of the 1960s and 1970s were, in Ely’s view, paradigmatic examples within the first category. Judicial interference in the reapportionment cases was justified because systematic bias favoring rural voters in state legislatures would never self-correct, because the legislatures were composed of those who had directly benefited from the bias, and the court had to intervene.

And so, too, in the Gill case; Wisconsin’s Democratic voters cannot, through their votes, correct the bias in the Republicans’ favor, because the map was drawn precisely to dis-enable them from being able to do that. It will be a sad day indeed if the court turns away from its constitutional obligation to keep the electoral process a fair one because its collective eyes glaze over at the sight of a mathematical symbol or formula.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/19/is-the-supreme-court-allergic-to-math/

Dickinson’s contributions to the Constitution

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

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/19/dickinsons-contributions-to-the-constitution/