Tuesday, December 19, 2006

The Unknown Thomas Burke

One of the joys of history comes from the little gems that you run into.

Take American revolutionary Dr. Thomas Burke, whom I stumbled across in Merrill Jensen's
The Articles of Confederation, at 174-75.

The first draft of the Articles of Confederation was drafted by a committee of the Continental Congress headed by John Dickinson, the "Pennsylvania Farmer" in 1767, and is known as the Dickinson Draft. The Dickinson Draft is a remarkable document. In some ways, it was a more "nationalist" and less "states-rights" constitution than the Constitution of 1787. In particular, the proposed federal government was not one of specific, enumerated powers. Art III of the Dickinson Draft provided that "Each Colony shall retain and enjoy so much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation."

The Committee presented the Draft to the Continental Congress on July 12, 1776. Amazingly (in retrospect), during debates held intermittently over the following eight months, no one objected to the centralized form of government that the document contemplated.

In February 1777, Dr. Thomas Burke arrived at Congress as a new delegate from North Carolina. When debate on the draft resumed, Burke quickly identified the central issue. Article III "expressed only a reservation of the power of regulating the internal police, and consequently resigned every other power." It was "in the Power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please."

To prevent this perceived tyranny, he proposed that "all sovereign power was in the States separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction, and not otherwise; but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled."

Suprisingly again, the other delegates were slow to realize the significance of Burke's objection. Ultimately, however, his proposal resulted in the adoption of what became Article III of the Articles of Confederation:

"Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

How can it be that this man, arguably America's first constitutional scholar, is virtually unknown? His brief
Wikipedia entry does not even mention his most significant contribution.

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