Thomas McKean of Delaware: Militia Colonel, State Deputy Attorney General and Chief Justice; Continental Congress President and Declaration of Independence Signer

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Essay 66 – Guest Essayist: Gordon Lloyd
SignerThomasMcKean1787CharlesWPeale Public Domain Image - https://en.wikipedia.org/wiki/Thomas_McKean#/media/File:Thomas_McKean_by_Charles_Willson_Peale.jpg

Thomas McKean (1734-1817) was born of Scotch-Irish ancestry in New London, eastern Pennsylvania near the border of New Jersey and Delaware. He married Mary Borden with whom he had six children. Mary was the sister of Francis Hopkinson’s wife. Hopkinson was a signer from New Jersey. After Mary died, McKean married Sarah Armitage and together they had five children.

McKean practiced law in both Pennsylvania and Delaware, and served as a colonel in the New Jersey militia. He was politically active in all three states, even while elected to federal office. In 1756, he became deputy Attorney General in Pennsylvania. In 1757, he was admitted to the Bar of the Supreme Court of Pennsylvania and appointed clerk of the Delaware Assembly.

In 1762, the Assembly appointed McKean and Caesar Rodney, another signer of the Declaration of Independence, to revise and publish the laws of the province of Delaware. Also in 1762, he was elected to the Delaware Assembly, and re-elected for seventeen years despite a six-year residence in Philadelphia during that time. No other Signer of the Declaration took part in so many different State activities simultaneously as did McKean.

In 1775, he represented Delaware at the Stamp Act Congress in New York and then Pennsylvania at the Continental Congress from 1774-1777. On July 1, 1776, two of the three Delaware delegates were in attendance. McKean voted in favor of Independence and George Read voted against it. McKean strongly opposed the power that the British were imposing upon the colonies. He sent an urgent message to Caesar Rodney in Dover to come at once to Philadelphia to break the deadlock. Rodney rode overnight in a rainstorm, having arrived wearing boots and spurs as described by McKean, and the deadlock was broken on July 2.

McKean also served on the Congressional committee that drafted the Articles of Confederation. In 1777, he was appointed Chief Justice of Pennsylvania, an office that he held for nearly twenty years. He was elected President of the Continental Congress in 1781. In 1787, he attended the Pennsylvania ratifying convention and voted in favor of ratification. In 1789, he was elected Governor of Pennsylvania and served in that office before retiring in 1812, but his governorship was controversial as he survived an impeachment effort due to strife within differing partisan viewpoints.

Toward the end of his life, though McKean had mostly retired, he participated in a discussion to guard against possible British invasion of Philadelphia in the War of 1812. McKean admonished the people to set aside differences and consider there were only two parties which consisted of America and its invaders.

McKean died in Philadelphia on June 24, 1817 at the age of 83.

Gordon Lloyd is the Robert and Katheryn Dockson Professor of Public Policy at Pepperdine University, and a Senior Fellow at the Ashbrook Center. He earned his bachelor of arts degree in economics and political science at McGill University. He completed all the course work toward a doctorate in economics at the University of Chicago before receiving his master of arts and PhD degrees in government at Claremont Graduate School. The coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal, he also has numerous articles, reviews, and opinion-editorials to his credit. His latest coauthored book, The New Deal & Modern American Conservatism: A Defining Rivalry, was published in 2013, and he most recently released as editor, Debates in the Federal Convention of 1787, in September 2014. He is the creator, with the help of the Ashbrook Center, of four highly regarded websites on the origin of the Constitution. He has received many teaching, scholarly, and leadership awards including admission to Phi Beta Kappa and the Howard White Award for Teaching Excellence at Pepperdine University. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

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George Read: Attorney General, Acting Governor, Delaware Supreme Court Justice, and Signer of the Declaration of Independence

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Essay 65 – Guest Essayist: Gordon Lloyd

George Read (1733-1798) was born in Maryland from a line of Irish and Welsh immigrants. However, he was raised in Delaware. He died in New Castle and is buried in Immanuel Episcopal Churchyard in Newcastle. Read was educated in Pennsylvania where he studied law and admitted to the Philadelphia Bar at age 20. In 1754, he returned to Delaware. In 1763, he married the widowed sister of George Ross, fellow signer of the Declaration of Independence from Pennsylvania and uncle of Betsy Ross. What is impressive is Read’s forty-year involvement in local, state, and national politics during which time he embraced both the politics of reconciliation with Britain in 1776 and the politics of change from 1786.

Read was attorney general in the colonial government from 1763-1774, but opposed the Stamp Act despite his reputation as a moderate. He was elected to the first and second Continental Congress from 1774-1776 along with Thomas McKean. The third delegate, Caesar Rodney, attended at the conclusion of the discussions. Read initially voted against Richard Henry Lee’s Resolution for Independence on July 2; he was the only eventual signer to do so. He preferred to continue pursuing possible reconciliation with Britain rather than agreeing to a complete break.

McKean sent an urgent message to Rodney in Delaware to come to Philadelphia to break the tie in the Delaware vote on independence because of Read’s reluctance to make the final step to endorse independence. Rodney’s vote broke the tie. When Lee’s Resolution was adopted, however, Read accepted the vote of his two Delaware colleagues and signed the Declaration.

In 1776, Read was selected to the Constitutional Convention in Delaware, where he served on the committee to draft the new Delaware Constitution. In 1777, the British captured Delaware President (Governor) John McKinley and Read became emergency governor replacing Thomas McKean who served as acting president for a short time prior.

Read was twice elected State Senator under the new Delaware Constitution. Between 1782-1788, he devoted himself to political activities in Delaware.

Read attended the Annapolis Convention in 1786 that called for a Grand Convention to meet in Philadelphia May 1786 to reconsider the structure and powers of the general government under the Articles of Confederation. He then represented Delaware at the Constitutional Convention, where he signed the Constitution, attended the 1787 Delaware Ratifying Convention, served in the United States Senate (1789-1793), and then as Chief Justice of Delaware. George Read was among six delegates who signed both the Declaration of Independence in 1776 and then, eleven years later, the United States Constitution in 1787.

Read actually signed the Constitution twice, signing once for himself and once for fellow Delaware delegate John Dickinson who was at home sick with a migraine. William Pierce, a delegate from Georgia at the Constitutional Convention, penned sketches of fellow delegates to the 1787 Convention. According to William Pierce, Read’s “legal abilities are said to be very great, but powers of Oratory are fatiguing and tiresome to the last degree.”

Yet George Read was known for his consistency in moral duties and benevolent ways. He was respected for setting standards Delaware would find as useful precedents or even authoritative. Having lived to the age of 65, Read died on September 21, 1798.

Gordon Lloyd is the Robert and Katheryn Dockson Professor of Public Policy at Pepperdine University, and a Senior Fellow at the Ashbrook Center. He earned his bachelor of arts degree in economics and political science at McGill University. He completed all the course work toward a doctorate in economics at the University of Chicago before receiving his master of arts and PhD degrees in government at Claremont Graduate School. The coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal, he also has numerous articles, reviews, and opinion-editorials to his credit. His latest coauthored book, The New Deal & Modern American Conservatism: A Defining Rivalry, was published in 2013, and he most recently released as editor, Debates in the Federal Convention of 1787, in September 2014. He is the creator, with the help of the Ashbrook Center, of four highly regarded websites on the origin of the Constitution. He has received many teaching, scholarly, and leadership awards including admission to Phi Beta Kappa and the Howard White Award for Teaching Excellence at Pepperdine University. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

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George Clymer of Pennsylvania: Merchant, Continental Treasurer, Second Continental Congress Delegate, and Signer of the Declaration of Independence

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Essay 59 – Guest Essayist: Gordon Lloyd

George Clymer (1739-1813) was born in Philadelphia, orphaned the next year, and then mentored to be a merchant and responsible citizen by his wealthy uncle. He died in Morrisville, Pennsylvania at age 74 and was buried in Trenton, New Jersey. In addition to being economically, and politically, active, Clymer supported the abolition of slavery and the development of the practical arts and sciences.

Clymer was an early supporter of the movement for independence; he opposed both the Tea Act and the Stamp Act in the early 1770s. He served as Continental treasurer, a representative in the Pennsylvania legislature, and delegate to the Second Continental Congress.

He was one of six delegates to sign the 1776 Declaration of Independence, and then the 1787 Constitution as part of the Constitutional Convention. The other five delegates who signed both documents included Benjamin Franklin, Robert Morris, George Read, Roger Sherman, and James Wilson.

Clymer was elected to the United States House of Representatives in 1789 where he supported Sherman in the successful effort to pass the Bill of Rights in 1791. He also helped President George Washington enforce whiskey excise taxes in Pennsylvania.

Despite Clymer’s extensive involvement in the story of the American founding, he is not on the list of influential, or even underrated founders.  We attribute this to Clymer’s inclination to work behind the scenes on the various committees to which his colleagues elected him. He reminds us of the steady and vital work done by individuals who do not seek the limelight. Contemporary William Pierce of Georgia, who provided character sketches of multiple founders, portrayed him as “a respectable man, and much esteemed.”

Gordon Lloyd is the Robert and Katheryn Dockson Professor of Public Policy at Pepperdine University, and a Senior Fellow at the Ashbrook Center. He earned his bachelor of arts degree in economics and political science at McGill University. He completed all the course work toward a doctorate in economics at the University of Chicago before receiving his master of arts and PhD degrees in government at Claremont Graduate School. The coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal, he also has numerous articles, reviews, and opinion-editorials to his credit. His latest coauthored book, The New Deal & Modern American Conservatism: A Defining Rivalry, was published in 2013, and he most recently released as editor, Debates in the Federal Convention of 1787, in September 2014. He is the creator, with the help of the Ashbrook Center, of four highly regarded websites on the origin of the Constitution. He has received many teaching, scholarly, and leadership awards including admission to Phi Beta Kappa and the Howard White Award for Teaching Excellence at Pepperdine University. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

Podcast by Maureen Quinn.

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Their Common Defense: Alliance Between the Sovereign States

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Guest Essayist: Gordon Lloyd

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How did three critical clauses of Article I, Section 8 of the Constitution come into being?  The clauses read: “The Congress shall have the power 1) to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for 2) the common defense and 3) general welfare of the United States.”

The general welfare and common defense clauses made their first appearance in Article III of the Articles of Confederation of 1781. Thus these two clauses have been linked together from the very beginning of the country as part of the undisputed and expressly stated role of the federal government.  They also made their way into the Preamble of the Constitution of 1787.

The union under the Articles of Confederation LIMITED THE REACH OF THE FEDERAL GOVERNMENT to the powers “expressly delegated to the United States.” (Article II.)  The “alliance” between the “sovereign states” was on behalf of their “common defense, the securities of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of the them….” (Article III.)  One power not expressly stated in the Articles was the power to lay and collect taxes.

A major problem under the Articles was agreeing on a formula for raising revenue to fund the limited objectives of the union.  Since Congress did not have the power to lay and collect taxes, requisitions to each of the states had to be filed. Accordingly, one reason for the Constitutional Convention in Philadelphia in 1787 was to secure a reliable source of revenue for the federal government.

The Virginia Plan, introduced by Edmund Randolph and James Madison on May 29, 1787, at the Constitutional Convention, contains 15 Resolutions to “correct and enlarge” the Articles of Confederation.  The first Resolution reminds us that the problem, as far as the Virginia delegates were concerned, lay with the limited powers and not so much the objectives of the Articles.  The goals of the Articles are reaffirmed by the first Resolution: “common defense, security of liberty and general welfare.”  And to secure these ends, the Virginia Plan recommended a radical alteration of the structure and powers of the federal government.  True, nothing was explicitly stated in the Virginia Plan about the power of taxation, but this power was added once the delegates got down to working out the details.

The Framers went through the first draft of the Constitution presented by the Committee on Detail on August 6.  There is a specific reference to the power of Congress to lay and collect taxes.  Congress was also given the power in this first draft “to lay and collect taxes, duties, imposts and excises” thus providing a constitutional source of revenue for the new government.  Congress was also given power on behalf of the general welfare clause, and the common defense.

As it emerged from the Committee on Detail, these three powers of Congress had the potentiality to be very broad reaching indeed.  Particularly unsettling was the unfamiliar power to lay and collect taxes clause designed to cover the “necessary expenses of the United States.” On August 25, Roger Sherman moved that taxes be limited to ” defraying the expenses that shall be incurred for the common defense and general welfare.”  So, according to Sherman, the “necessary expenses of the United States” are those expenses that are incurred on behalf of the common defense and general welfare. The delegates initially dismissed Sherman’s proposal as so obvious it was “unnecessary.”

But Sherman persisted. He was concerned that if the Constitution did not explicitly restrain elected officials by specific limitations on the taxing power, then they will use the taxation power to extend the reach of federal government. On September 4, the delegates agreed with Sherman that “The Legislature shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” This was unanimously agreed to.  Thus, Sherman got his way in LIMITING the power to lay and collect taxes to items that fell under the common defense and general welfare clauses.

So we can mark September 4 as the date securing the specific linkage between the lay and collect tax clause, the common defense clause, and the general welfare clause.  On September 12 Report the Committee of Style substituted “Congress” for the “Legislature.”

A related question is how did the common defense clause and the general welfare clause make their way into the Preamble of the United States?  We have seen how the Articles of Confederation had a Preamble in which the purposes of the union were “common defense, the securities of their liberties, and their mutual and general welfare.”  The Constitutional Convention followed this precedent.

All through the ratifying debates, opponents of the Constitution, such as Brutus, wondered whether the taxation, common defense and general welfare clauses, instead of being restrictions on the reach of the taxing power of the federal government, as intended, were actually potential invitations for the expansion of the powers of the federal government. What activities of the federal government, said Brutus, could not be included under the taxation, common defense, and general welfare clauses?  The answer, said the authors of the Constitution, was that the power to tax must be clearly associated with items that manifestly concern the common defense and the general welfare.

Professor of Public Policy at Pepperdine University, Dr. Gordon Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

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Amendment XVIII, Section 1

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Guest Essayist: Gordon Lloyd, Ph.D., Professor of Public Policy at Pepperdine University

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section One of the 18th Amendment contains only forty-four words.  These few words are intended, however, to introduce a remarkable and clear change in the relationship between the federal government and the individual American citizen.  In popular terminology, this section prohibited, and criminalized, what was formerly a matter of taste or culture, namely, the purchase and consumption of alcoholic beverages.  But, as we shall see, there is a bit more nuance and ambiguity in this section than what is captured by the common understanding.  Language matters and the thoughts behind the words also matter.  In addition, sometimes, what isn’t said is as important as what is said.

We can collect the words that are indeed said into five separate but related categories. 1) After one year from the ratification of this article 2) the manufacture, sale, or transportation of intoxicating liquors 3) within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof 4) for beverage purposes 5) is hereby prohibited.

This is the first time that an amendment to the Constitution would not take effect immediately upon receiving the requisite votes of 3/4 of the state legislatures, but at a later designated time.   The amendment was ratified on January 16, 1919 and went into effect on January 17, 1920.  Why designate a one-year delay?  The thought was that one-year would give American business, government, and citizens sufficient time to adjust their life style to a new, and so the proponents thought, improved American way of life.

Americans, for most of their history, however, accepted that the Constitution limited the reach of the federal government to few and defined objects leaving the rest of public policy to state and local governments or to the private sector.  The Constitution “enshrined” the rights of the individual and the states over against the federal government in the Bill of Rights, also known as the first ten amendments.

True, the 14th -15th Amendments, passed in light of the civil war, limited, for the first time, what state governments could and could not do.  Specifically, no state could deny the civil rights and voting rights of recently freed African Americans.  And the 13th Amendment also constitutionally limited what Americans could own:  it declared that no American could own another person.

A second feature to Section One of the 18th Amendment, therefore, is that it introduces over 100 years after the Founding amendments, and fifty years from the Civil War amendments, into the very Constitution itself, the proposition that we as individual Americans do not own ourselves with respect to the consumption etc., of certain beverages.  Not having a drink is made the moral equivalent of not owning a slave?

The prohibition of alcohol was not a phenomenon at either the Founding or the Civil War.  The case for federal, and then constitutional, prohibition grew out of the success of the Temperance Movement. Their appeal to end the evil of drink spread across the various states in the late nineteenth century and into national politics in the early twentieth century.  Overwhelming majorities of both political parties in Congress endorsed National Prohibition in 1917.  Thus, surprisingly, a formerly politically decentralized and alcohol drinking nation overwhelmingly accepted the Temperance argument that drinking was a moral issue, rather than a matter of personal taste, and that it ought to be constitutionally prohibited.

The fascinating interrelationship between the 16th, 17th, 18th, and 19th Amendments—the so-called Progressive Amendments—is beyond the scope of this essay.  But we do need to ask:  What is Progressive about Prohibition? Both movements see the “cleaning up” of the American political system, with its “smoked filled rooms,” on the one hand, and reforming public conduct and getting rid of saloons on the other hand, as twin forces in the transformation of America into a better nation.

But, once again, language is important.  The clear and purposeful prohibition language covering the importation, exportation, and domestic “manufacture, sale, or transportation” shows the moral side of America.  But what is not said in this “mission statement” shows the endurance of entrepreneurial politics in American life.  This is the third feature that is important in Section One.

Despite the common interpretation, Section One does NOT prohibit “the purchase and consumption of alcoholic beverages.” The words, “purchase,” “consumption,” and “alcohol,” are not mentioned.  What is found there instead is the phrase “intoxicating liquors.”  This leaves open to future Congressional debate, and political exemptions, what is “intoxicating” and what are “liquors?”   What about “sacramental wine,” and “medicinal alcohol?”  Shall they be exempt?  After all, the prohibition is “for beverage purposes.”  Nor is anything said about eating purposes.  This ambiguous language is not accidental; it reflects the persistence of entrepreneurial politics in America.

Professor of Public Policy at Pepperdine University, Dr. Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

May 16, 2012

Essay #63

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