The John Dickinson Draft of the Articles of Confederation

Jane E. Calvert

Dickinson’s draft of the religious liberty clause in the Article of Confederation. “Hints of a Confederation,” [June 1776], R. R. Logan Collection, Historical Society of Pennsylvania.

The Articles of Confederation are best-known for their “imbecility,” and perhaps rightly so. Understanding what they could have been will likely only reinforce this view. In his draft of the Articles (now at the Historical Society of Pennsylvania), written in June 1776, John Dickinson produced a document with startling provisions for the new republic.

Why Dickinson was assigned the task of drafting America’s first constitution, despite his resistance to independence, is the topic of another essay—his unmatched celebrity as the spokesman for American rights and liberties against British oppression. By the spring of 1776, Americans had heeded his counsel and followed his leadership for over a decade. It was only in the last few months that public sentiment had turned against his plan of reconciliation. As much as his colleagues grumbled about his unwillingness to change his position, they were not yet ready to abandon his expertise.

Over two decades of getting to know Dickinson, I have become convinced that the main reason this conscientious lawyer, devoted to “defending the Innocent & redressing the injurd,” did not want independence was because he was highly dubious that Americans could secure basic rights as well as they were already secured—or were likely to be secured—under the British constitution. His draft of the Articles lends credence to this theory. He put forth several key provisions that deserve mention, provisions that, had they been adopted, would have launched America on a very different course: a strong central government; protections for Indians; the abolition of slavery; religious liberty; and the rights of women. As I have argued elsewhere, it is likewise clear here that these provisions came from his close association with the Quaker community. In each instance where Dickinson offered a remedy for potential problems in the new polity, his sense was proven right by subsequent events that demonstrated the gaps in protections for individuals and the instability of the polity as a whole. In some cases, his suggestions were eventually implemented. In other cases, we are still waiting.

Dickinson had long been an advocate of a robust constitution as a means for political stability and preservation of rights. With the local example of the federated Quaker meeting close at hand, he began formulating a theory of federalism very early in his career. He had been pondering the relationship of the colonies to Empire at least as early as his work representing merchants in the flag-of-truce trade in the late 1750s. For federalism to work, whether in a religious or political body, there must be a strong, superintending authority with distinct limits. He therefore wrote in his draft of the Articles (here curly braces represent his insertions), “Each Colony shall retain and enjoy as much of its present Laws {Rights &} Customs{,} and Rights, as it may think {fit,} and reserves to itself the sole and exclusive Right ofregulating{on} its internal {and} Government and Police {of its internal Police,} {[}in all Matters that shall not interfere with the Articles agreed upon by {of} this Confederation{]}.” The evisceration of this provision and the lack of a strong central government was, of course, the main reason why Dickinson, as chairman of the Annapolis Convention, called for a Federal Convention. In the Convention, he insisted on the central government being strengthened with a healthy balance between state and Federal power, yet we know well that this issue is still far from resolved.

A provision for the protection of Indians, though not unique to Dickinson’s draft of the Articles—Franklin’s contained a similar provision—it could only have been proposed by Pennsylvanians thinking of the Quakers’ historic friendship with Native peoples. Dickinson specified that “their Lands to be secured to them, and not encroach’d on” and that there be “Persons to be appointed {by the Union} to reside among the Indians in proper Districts, who shall take Care to prevent Injustice in the Trade with them, and shall be enabled at the general Common Expence of the united Colonies by occasional Supplies to relieve their personal Wants & Distresses.” More than Franklin, however, in several other instances, before and during the Confederation period, Dickinson worked for Indian rights. This provision, however, was a nonstarter and was rejected even in this first draft. It is needless to mention the egregious violations of these rights and the treaties meant to protect them over the centuries. The so-called Native American Bill of Rights was passed in 1968 extending basic American rights, but land, voting, and other rights are still not protected.

In June 1776, when Dickinson was writing his draft, he had only recently begun voicing his opinion publicly against slavery. In his draft, he wrote, “Q[uære] Slav[ery?] The Const[r][ucti]on to be in Congress”—because he did not trust the individual states to decide the question appropriately. When nothing came of his query, in the committee draft he followed up more explicitly: “Should there not be an Article to prevent those who are hereafter brought into these Colonies, from being held in Slavery in these Colonies?” It was no coincidence that Dickinson brought this up now. He was mindful of the 1772 British ruling in Somerset v. Stewart, which held that slavery was incompatible with the common law. Just as southerners feared it might affect America, Dickinson undoubtedly hoped it would. The Quakers had already founded the Pennsylvania Abolition Society and decreed that members must free their slaves. The next year, Dickinson, not a Quaker but a fellow traveler, became the only major Founder to free all of his slaves during his lifetime, provide reparations, and write abolition legislation for his home state of Delaware. In the Federal Convention, he argued that the states, which were self-interested, should not be allowed to determine the end of the slave trade, and instead he motioned that it be abolished at the Federal level in 1808, which became Art. 1, §. 9 of the Constitution.

The most striking provision in Dickinson’s draft of the Articles was the one on religious liberty. Historically, Quakers had been uniquely targeted for religious persecution, which made them particular champions of religious liberty. Dickinson provided that states could do nothing to restrict whatever religious liberty their inhabitants already had. This provision was objectionable enough that it was excised from the committee draft. But there was something more remarkable that Dickinson’s colleagues rejected with it. He wrote, “No Person or persons in any Colony living peaceably under the Civil Government shall be molested or prejudiced in his or their {his or her} Person or Estate for his or her religious persuasion or Practice.” To be clear, he first wrote “his or their,” then he crossed it out and replaced it with “his or her.” This is the first instance of gender-inclusive language used in a substantive provision of an Anglo‒American constitution. Neither is this coincidental in the context of Dickinson’s life. The two most important people in his world were Quaker women—his mother and wife. It was an ugly rumor among his colleagues that Dickinson actually respected their opinions. It is no stretch that he would seek to protect their rights. But there was more to the clause than simple liberty of worship. For Quaker women, “practicing” religion meant preaching publicly. In perhaps the most revolutionary moment of the Revolution, this clause protected not just women’s religious liberty but their freedom of public speech. Immediately, Dickinson was proven right about the need for protections for religious liberty during the matter of the Virginia Exiles. In 1777, at the urging of esteemed patriots Thomas Paine and John Adams, leading Philadelphia Quakers were rounded up as traitors, denied habeas corpus, and held without charge for nine months, destroying lives and livelihoods, on the grounds that their religious beliefs were incompatible with the American cause. Dickinson’s provision anticipates not only the First Amendment protecting freedom of religion and speech, but also the Fourteenth incorporating these protections against the states. And it wasn’t until the 1980s that states began to use gender-inclusive language in their constitutions.

That each of these provisions was excised either in the committee draft or by the final version in 1777 makes the story of the creation of the Articles of Confederation one of tragically missed opportunities. When inclined to lament our Founders’ short-sightedness and narrow views on rights, we frequently excuse them as “men of their time” who could not possibly have imagined the liberties and equality among men and women many of us take for granted today. But at this crucial moment in establishing our republic, Dickinson stood at the intersection of two paths with a roadmap—his draft of the Articles of Confederation—pointing to the future. The road not taken, then, was not because other Founders didn’t know that path was there. They saw the possibilities and decided against them. It should be known that Dickinson was putting forth startlingly progressive ideas that were obviously considered and dismissed. In some cases, the provisions were adopted only a few years later, while others had to wait 200 years. Even more remarkable is that some of them still haven’t been adopted. It’s not too late.

9 November 2020

About the Author

Jane E. Calvert is Director and Chief Editor of the John Dickinson Writings Project and associate professor of history at the University of Kentucky.

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