Tenth Amendment Center: The Stamp Act: A Constitutional Crisis
The Stamp Act was a major source of tension between the British and the colonists in the years leading the start of the War of Independence. The act was part of a broader constitutional crisis between the colonies and England. Echoes of that crisis have reverberated all the way through America’s history until today.
The Stamp Act levied a tax on all legal papers, commercial papers, pamphlets, almanacs, playing cards and dice. Colonists could only obtain the stamped paper from commissioned distributors who were to collect the tax in exchange for the stamp. However, colonists led by ‘The Sons of Liberty,’ used non-cooperation backed by force to prevent the distribution of stamp papers. As a result, very little stamp paper actually was distributed.
Leading up to the Stamp Act, Parliament had already started to overstep its constitutional authority in the colonies by passing ‘The Proclamation of 1763’ which banned any colonist from settling west of the peaks of the Appalachians in an attempt to cut off conflict with the Indians. In effect, the proclamation effectively voided many investments already made in land plots due west.
Next, Parliament passed ‘The Currency Act of 1764’ which banned the colonies from issuing their own currency, a much-needed power in a time were specie was running short. In 1766 Ben Franklin argued the proclamation was unnecessary, saying it would keep the common people impoverished and therefore obliged to sell land for cheaper than its value. He asserted that the shortage of currency would discourage people from working in industries such as trade or produce since investors weren’t risking their money in such things.
These early acts set off the constitutional conflict with the English. The colonists believed Parliament had overstepped its jurisdiction by order of the King’s Charter. Next, Parliament passed ‘The Sugar Act of 1764,’ levying an import tax on molasses enforced by the admiralty courts. The act was initially only loosely enforced until Lord Grenville pushed for more vigorous enforcement in an attempt to solve the English’s lack of money problem. The colonists again asserted that the act was an unconstitutional tax, and that it violated English natural rights by trying the colonist without juries.
In an attempt to stop further taxes, Ben Franklin pleaded with Greenville to create a central banking system to pay for operations in North America (Gutzman, 2010). Of course, we have seen how well that worked out when President Wilson signed the Federal Reserve Act of 1913. Greenville ultimately disregarded Franklin’s request and went on to pass the Stamp Act with the help of Thomas Whatley who authored the bill.
This act didn’t sit well with the colonist. Sir Isaac Barre, who was one of the few members to oppose the Act in Parliament, expressly predicted that there would be revolt or rioting in the colonies.
The colonists had a good case when they claimed a right to self-govern. The King’s charter made it clear, “I DO………DECLARE AND ORDER THAT MY LOVING SUBJECTS IN AMERICA SHALL FOREVER……ENJOY THE RIGHT TO MAKE ALL NEEDFUL LAWS FOR THEIR OWN GOVERNMENT.”
This charter had gone unchallenged since the settling of Jamestown. It declared the colonists had all the same natural rights as Englishmen and the right to self-government. This was a practical matter as much as anything, considering an ocean lay in-between England and her American colonies.
On June 8, 1765 the Massachusetts House of Representatives called for a Stamp Act Congress. The congress convened October 7-15 of that same year and adopted ‘The Declaration of Rights and Grievances,’ authored by the great statesman John Dickenson. The Declaration asserted it was the natural rights of an Englishmen to only be taxed where they have representation.
John Adams echoed this argument two months later in before Governor Bernard, claiming the act was ‘utterly void’ and was made where they were in no sense represented.
Dickenson also argued that the colonists could not be represented in Parliament. Therefore only the colonial legislatures had the authority to lay taxes. Finally, Dickinson responded to the admiralty courts enforcing the Sugar Act, stating it was an Englishmen’s natural rights to have a trial by jury. Dickenson summed things up declaring these parliamentary measures were “inconvenient, impracticable, and unconstitutional.” (Gutzman, 2010)
The King’s charter served as the foundation for colonial arguments that the Stamp Act was unconstitutional. The charter created two separate sovereign entities, meaning England was the sovereign over its kingdom and the colonies were sovereign over themselves with the right to self-govern as long as they complied with the English constitution. This effectively split power down the middle. In effect, Parliament was to control “kingdom business” – primarily foreign policy and trade – and the colonies would have control over local issues and internal affairs.
Parliament couldn’t make laws over the colonies and the colonies couldn’t make laws that go against the constitution.
However, Stamp Act author Thomas Whatley made justified the act, saying that “national and local legislation cannot logically coexist and the latter would have to yield to the former.” Ironically, in February 1776, John Adams made the same argument but came to the opposite conclusion – the former would have to yield to the latter.
In 1798/99 both James Madison and Thomas Jefferson took Adams’ original stance in their Kentucky Resolutions and Virginia Resolutions against the Alien and Sedition Acts, arguing that the former would have to yield to the latter. The Honorable John C. Calhoun also used Adams argument in his Fort Hill Speech in 1831, saying the states and the federal government can’t both be sovereign and one would have to yield to other. Calhoun believed that the creature of the states would gobble up the creator if a constitutional remedy was not found.
The second point Whatley made in justifying the Stamp Act was that even though the colonies didn’t have direct representation in Parliament, the elective from Westminster Abbey did not only represent the Abbey but the entire “empire.” Of course, the King’s charter rendered that statement false, which was pointed out by Richard Blackstone. He wrote, “North American colonist were not a part of England and were settled through colonist efforts with the crowns stipulations.”
The stipulations being that they must conform to the constitution.
Efforts to render the act unenforceable in the colonies and growing opposition at home eventually doomed the Stamp Act. Merchants in England called for repeal, which eventually led to the passing of the “Declaratory Act” in March of 1766, declaring the that colonies are all subordinate to the Parliament.
Leading up to this point Thomas Paine made it clear in his famous book “Common Sense” that war was inevitable and it was only a matter a time before it happened. Both the Stamp Act and the Declaratory Act were the tipping point for war.
Parliament’s arguments tacitly recognized the fact that the Stamp Act was unconstitutional. Thomas Whatley and the rest of proponents of the act needed a way around the charter by passing the Declaratory Act, which was also unconstitutional.
Opponents in the colonies may not have won the constitutional argument in England, but they were able to free themselves from the act by simply nullifying it through proclamations backed by concrete action preventing its implementation and enforcement.