Friday, April 20, 2018

Articles of Confederation, Part X: the Substance of a Nation, contd.

            Further examination of the selfsame Article IX would appear to indicate that maritime law was not the only area in which the authors thereof were inclined to reassert a pre-Revolutionary dynamic. Consider, to that end, the passage which declared that,

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States – fixing the standards of weights and measures throughout the United States – regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated [.]

Granting that the finer points of coinage may not appear to make for the most riveting investigation into the history of American constitutionalism, the mundanity of the topic belies the significance of its implications. Throughout the majority of the colonial era – 1600 to 1776, or thereabouts – hard currency in the form of gold and silver coins were generally quite rare in America. In part, this was the result of British trade and monetary policies which sought to concentrate wealth in the seat of empire. So long as British merchants enjoyed a monopoly on trade with the colonies, and so long as they demanded to be paid in hard currency for the goods they sold in abundance in America – to a higher total value than that which they purchased in the form of American produce and raw materials – the colonists would remain perpetually at a loss.

This lopsided monetary dynamic was reinforced by longstanding laws and traditions that made the minting of coins a privilege very closely controlled by the British Crown. Granted, the physical production of coins in gold, silver, or copper had at various times been contracted out or otherwise dispersed from its customary home in London – Charles I (1600-1649) notably called for the establishment of sixteen emergency mints scattered across the British isles during his flight from the capital in 1642. But even these occasional experiments in decentralization were carried out under fairly stringent royal authority or under fairly extraordinary circumstances. The colonies were no exception to this status quo, being generally forbidden to produce specie under their own name absent the formal approval of the Crown. While attempts to circumvent this policy were not unheard of – Massachusetts, for example, struck a series of pence and shilling coins between the 1660s and 1680s using the common mint date of 1652 (in the midst of the so-called Interregnum when Britain had no monarch) as a means of avoiding accusations of fraud or counterfeit – the most common solutions were an increased reliance on Spanish and Portuguese coins obtained by colonists through illicit trade with the West Indies and the use of fiat paper currency. The latter was also regulated by British law, though to a more forgiving degree than metal coinage. While a series of Currency Acts (1751, 1764) restricted how much paper money the various colonial governments could emit and sought to dictate whether said bills were valid for public debts (i.e. the payment of taxes) or private debts (i.e. the payment of personal expenses) – largely in response to colonial attempts to use rapidly depreciated paper money to reimburse British merchants – successive governments continued to recognize the need for the various colonies to issue some form of currency in order to meet the basic needs of their citizens.

At this point it bears recalling precisely what the cited text of Article IX had to say on the subject of monetary policy. “The United States in Congress assembled,” it read, “Shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States [.]” On one hand, the framers of the Articles allocated substantial authority over the minting of coins – either by Congress or the various states – to the national government. On the other hand, they made no mention whatsoever of the issuing of paper currency or the regulation thereof. As with the exercise of maritime law discussed above, this would seem to constitute a general – if somewhat qualified – reaffirmation of what had been the customary dynamic between the colonial governments and the appropriate British authorities. By omitting any mention of paper bills, Dickinson and his committee may well have intended to enshrine into the governing charter of the nascent United States the freedom from excessive monetary oversight that the colonies had earlier demanded from Parliament and only partially received through the passage of the aforementioned Currency Acts. At the same time, by allowing Congress to exercise unilateral authority over the value of American coinage – the minting of which was not necessarily denied to the states – some degree of coordinating power was thereby preserved. The national government described by the Articles thus both recognized the changed circumstances wrought by the separation of the Thirteen Colonies from British authority – embodied by its attitude of deference to the sovereignty of the states – while also attempting to adopt certain of the (necessary) regulatory tendencies previously exercise by the same. The second portion of the cited text of Article IX – concerning the exclusive authority of Congress in the realm of, “Regulating the trade and managing all affairs with the Indians, not members of any States” – seems to conform to this same basic pattern.

In spite of the many and various instances in which colonial relations with the indigenous peoples of North America seemed to proceed according to the intentions and desires of the colonists themselves, the British Crown always formally regarded itself as the only legitimate authority in the realm of aboriginal affairs. In consequence, the Crown reserved the exclusive right to conduct treaty negotiations, purchase land, erect reservations, or collect tribute. While this arrangement didn’t necessarily stop individual colonies from waging war upon neighboring tribes or attempting to acquire large tracts of land from the same, the authority of the reigning monarch was always represented by and flowed through their appointed colonial executive. Colonial legislatures thus lacked the statutory power to meaningfully interact with native peoples of their own accord, relying instead on the relevant governor to provide the necessary official sanction. The creation of the Indian Department in 1755 – falling under the authority of the British Army – and the release of a royal proclamation in 1763 – issued in the name of George III (1738-1820) – each served to reinforce this state of affairs by further divesting colonial authorities of discretion in treating with local indigenous peoples. Under the auspices of the Indian Department, a corps of Indian Agents responsible exclusively to the British government assumed authority over all diplomatic relations with the relevant tribes – to the now total exclusion of the various colonial governments – while the aforementioned declaration formally affirmed – among other guarantees – that the selfsame peoples, “Who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds [.]” The colonial reaction to these developments was understandably mixed.

Under the terms of the aforesaid proclamation, colonial settlement west of the Appalachian Mountains was forbidden, colonial purchase of native lands was severely restricted, and colonial trade with native peoples was permitted only under license from the appropriate representative of the Crown in America. Particularly as it impacted upon existing claims possessed by inhabitants of the colonies, residents or property owners in settlements lying within the designated “Indian Reserve,” and colonial speculators ever eager for cheap land they could turn for a profit, discontent was both common and vehement. Having ostensibly witnessed their future prospects being traded away by the Crown without their consent, many of the inhabitants of British America were given to petitioning for redress while also lamenting the inability of their respective governments to see to a vital area of domestic concern without ministerial approval. As the resulting tensions were further amplified by the passage of particularly noxious revenue legislation – i.e. the Sugar Act (1764), Stamp Act (1765), the Townshend Duties (1766), and the Tea Act (1773) – bitterness turned to suspicion which in part came to focus on the aforementioned Indian Department, its agents, and their monopoly on indigenous affairs. Faced with an increasingly belligerent government in London whose ministers showed no qualms about directing British military resources in America towards the quashing of public dissent, the existence of a network of Crown proxies possessed of sole responsibility for carrying on diplomatic relations with the various tribes residing in and around the Thirteen Colonies appeared to the political opposition therein an increasingly dangerous prospect.

The declaration of American independence and the creation of a union of states out of what had once been a loose association of British colonies naturally presented to the nascent authorities therein an ideal opportunity to redefine the responsibilities formally allocated to local, regional, and national government. Owing to the tensions outlined above which had formerly flowed out of the monopoly claimed by the British Crown over all diplomatic and economic relations with the indigenous peoples of North America, this particular policy area was understandably among those in particular need of reassessment. The framers of the Articles of Confederation, tasked with creating the first national government in the as yet brief history of the United States of America, accordingly sought to rebalance responsibility for “Indian Affairs” in favor of the various states. Those native peoples residing within the boundaries of a given state, for instance, were specifically exempt from any claim by the United States government to exclusive jurisdiction. Likewise, Congressional regulation of diplomatic and economic affairs with otherwise un-exempted native tribes was to be valid only under the condition that, “The legislative right of any State within its own limits be not infringed or violated [.]” Doubtless, these provisions were crafted by Dickinson and his committee with the specific intent of both recognizing the sovereignty of the individual states and providing their governments with the discretion they had previously been denied to manage their relations with the relevant indigenous peoples. Whereas treaties touching upon relations with tribes residing within the claimed territory of a given colony had previously been negotiated and signed by British Indian Agents acting on behalf of the Crown – wholly absent colonial input – the elected governments of the various states would now evidently possess free reign to treat with the native peoples falling within their jurisdiction as and when they saw fit to do so.

For all that this represented a significant change in the indigenous policy of the former Thirteen Colonies – and it did – some degree of authority nevertheless remained beyond the ability of the states to wield. As cited above, the Articles of Confederation reserved to Congress the, “Sole and exclusive right and power of […] regulating the trade and managing all affairs with the Indians, not members of any of the States [.]” While this was admittedly a qualified assertion of power, it was still an exceedingly significant one. While permitting individual states to engage with their own native inhabitants as they so desired, and affirming the primacy of state law over whatever policy Congress chose to pursue in the realm of indigenous affairs, the relevant provision of Article IX otherwise delegated the same authority previously claimed by the British Crown to the Congress of the United States. Only Congress, for example, could claim the right to purchase land from native tribes not residing within the jurisdiction of a given state(s), or negotiate treaties with the same, or carry on or authorize trade with the same. In this way, the national government of the United States would effectively and exclusively regulate what would shortly prove to be one of the principle means by which the nation pursued a policy of territorial expansion. Likewise, in the event that the various states possessing territorial claims in what was then the northwest corner of British North America – now the Midwest of the United States – transferred those claims to the government of the American union, formal responsibility for treating with the native inhabitants of the resulting federalized region would accordingly fall to Congress. In consequence, the accommodation of the affected tribes to the inevitable reality of further American settlement, political consolidation, and the eventual admission of new states to the union would firmly fall within this selfsame national prerogative.

  Combined with the aforementioned authority over maritime law and monetary policy, the delegation of indigenous affairs – and in turn the means by which the United States would seek to expand through the addition of new states – would seem to constitute an attempt on the part of the framers of the Articles of Confederation to create in the resulting national government something more like the British Parliament than the current federal administration. Specifically, it would appear as though they were keen to recreate in the government of the United States the version of Parliament they had become familiar with as citizens of the various colonies of British America – i.e. Parliament as viewed from three thousand miles distant. According to the accustomed dynamics of this relationship – honed over the course of a century and a half – the various colonies enjoyed responsibility for most of their domestic affairs while the British government proper laid claim principally to foreign relations – i.e. diplomacy and war – monetary policy, and indigenous affairs. While this dynamic was almost entirely born out of necessity – the domestic needs of the various colonial populations being nearly impossible to attend to in a timely fashion from across thousands of miles of turbulent ocean – time and custom ensured that the affected populations came to see it simply as the natural order of things. Though the resulting national government deferred to the colonies-cum-states in certain aspects of these formerly national prerogatives – by granting them the right to establish prize courts of their own, for example, or recognizing their jurisdiction over their native inhabitants – the Articles of Confederation largely recognized and sought to perpetuate this same understanding.

In consequence, rather than constituting something wholly new, radical, or innovative, the Articles of Confederation in the main appeared to represent an attempt by the contemporary membership of the Continental Congress to reconstruct the status quo they’d become accustomed to – indeed, come to depend on – prior to the tensions wrought by the Anglo-American crisis of the 1760s and 1770s. Certainly the resulting committee was willing – if not eager – to reconsider some of the basic assumptions upon which the Anglo-American relationship had previously pivoted. The number of instances in which the Articles of Confederation deferred to the states in areas of policy previously the exclusive bailiwick of Parliament speaks to this assertion well enough. But the degree to which the resulting national government claimed exclusive jurisdiction – and the specific areas in which it made these claims – gives strong evidence as to the framers’ intentions. Rather than give rise to a national authority specifically equipped to cultivate and pursue a set of distinctly national prerogatives – with all the allocations of power that would have entailed – Dickinson and his committee instead effectively sought to transpose the relationship that had previously existed between the colonies of British America and the various institutions of the British government onto the newfound context of a union of sovereign American states.

The few areas in which the resulting government claimed exclusive authority fell safely within the realm of those prerogatives customarily claimed by Parliament and the Crown. In this way, the various state governments would only be forced to contend with – and theoretically bend to – national power within the context of responsibilities they not used to exercising themselves. The colonies of British America didn’t conduct their own foreign relations, after all, or coin their own money, or negotiate treaties with neighboring native tribes – much though their inability to do so became occasional cause for frustration. Creating an administrative framework upon which these responsibilities could be grafted accordingly represented perhaps the easiest and most logical next step in the political evolution of the union of American states. The result, the framers of the Articles evidently hoped, would be a government that behaved as though it was many thousands of miles away while in reality remaining close enough to be restrained from behaving otherwise. 

Friday, April 13, 2018

Articles of Confederation, Part IX: the Substance of a Nation

            Having thus far explored the many policy areas in which the national government described by the Articles of Confederation appeared to defer to the states – either explicitly or in practice – it remains to determine and discuss which, if any, prerogatives the framers of said document saw fit to vest solely and unequivocally in Congress. Given the evident determination of this group of men – assigned to the task by the Continental Congress and led by Pennsylvania delegate John Dickinson – to leave as much discretion to the states as possible to conduct their domestic affairs as they saw fit, this is bound to be a short list. Unlike the United States government described by the Constitution, the administration created by the Articles could not direct the states to do much of anything they were not already inclined to attempt of their own accord – from paying into a common treasury, to raising military forces for national service, to requiring that each of them recognize the “records, acts, and judicial proceedings” of every other. It is accordingly notable, by way of juxtaposition, that the Articles contain nothing like the Necessary and Proper Clause – Article I, Section 8 – or the Supremacy Clause – Article VI – both of which presume a degree of deference to national authority at the expense of the states. Dickinson and his committee – and indeed likely the greater share of their countrymen – were seemingly not yet prepared to accept the existence of a national authority whose power was so broad, so penetrating, and so irresistible, particularly in light of the sweeping claims recently made by Parliament to jurisdiction over British America. Most of the responsibilities afforded to the government of the United States under the Articles of Confederation were accordingly slight, carefully delineated, and located in areas not likely to be of concern to the governments of the states.

            Article VI and Article IX contain by far the majority of the exclusive grants of power made to Congress of all those described in the relevant document. The former in particular seems almost wholly concerned with affirming some of the prerogatives to be exercised by the resulting national government, specifically in the areas of war and diplomacy. “No State,” it first declared, 

Without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; not shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State [.]

Unlike most other provisions of the Articles which seek to delegate authority to Congress, this one notably omits any exceptions or caveats in favor of state autonomy. Congressional authority in this context was therefore absolute rather than conditional. Evidently, the framers of the Articles did not feel there were any circumstances within which it might be acceptable for a given state to unilaterally accede to a treaty or alliance with a foreign entity, or for persons holding public office under the auspices of the Articles to receive “any present, emolument, office or title” from the same. That being said, they evidently did not see fit to entirely foreclose upon the possibility.

Note that the restrictions cited above were only to apply to actions undertaken “without the consent of the United States in Congress assembled.” It would seem logical to infer, therefore, that the framers of the Articles did imagine that Congress might at some point conceivably agree to permit a given state to partake in a foreign alliance or treaty or allow officers of the United States to take receipt of foreign titles or gifts. Recalling how likely it was – based on the terms of Article V in particular – that the resulting national government would be dominated by the intentions and desires of the states, this is perhaps an understandable admission. In the event, say, that a group of states comprising a majority in Congress were determined to accede to a foreign treaty of which certain other states were not a party, they doubtless would have viewed it as an unacceptable restriction upon their sovereignty for the terms of the Articles to forbid from proceeding on their own behalf. That Dickinson and his committee appeared to have anticipated such a scenario, and provided for its resolution in favor of the states in question, is quite telling. The United States Constitution, while making use of exceedingly similar language in Article I, Sections 9 and Article I, Section 10, notably excludes any grant of discretion to Congress. Evidently, by 1787, it was no longer possible for the majority of the political class in the United States to imagine the states acting other than in concert without in some way harming the prospects of the union as a whole.

Nevertheless, the various provisions of Article VI still constitute a noteworthy signifier of contemporary opinion as to the sphere best occupied by a national government. Clearly, the framers of the Articles felt uncomfortable unequivocally restricting the ability of the states to undertake whatever measures their governments and their citizens determined to be in their best interest. All the same, the fact that they sought to provide Congress with a “first right of refusal,” as it were, provides no small degree of insight into the nature of the relationship they collectively envisioned between the major institutions of the American union and its constituent republics. Consider, to that end, another provision of Article VI. “No State shall lay any imposts or duties,” the text asserted,

Which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

That Dickinson and his committee here dispensed with the conditional exception in light of Congressional consent would seem to make clearer still the role that they intended the national government to play in the affairs of the union of American states. In seeking to fulfill the terms of certain agreements provisionally contracted with France and Spain – allied to the United States in its war for independence from Great Britain – no state would be permitted by Congress to lay any taxes or duties that might harm the prospects of the same. Granting that this may seem on the surface a rather academic matter, the implications were in fact anything but.

            By the standards of the 18th century Anglo-American world – and indeed, by those of its 21st century equivalent – taxation constitutes one of the fundamental prerogatives of a sovereign political community. To claim sovereignty over a people or a region is to simultaneously reserve the right to draw upon the resources thereof in a manner deemed appropriate by the affected individuals and in keeping with the relevant standards of administration. Within this context, properly levied taxes cannot be refused and improperly levied taxes must be. The Anglo-American crisis in large part pivoted upon the significance of this very maxim – i.e. was it proper for Parliament, as the legislature of the British Empire, to tax the colonies of British America, or did that responsibility rest solely with the colonial legislatures in which the people being taxed were represented? Congress and its supporters emphatically believed the latter to be the case, and it accordingly stood to reason that any attempts by that body to answer similar questions while plotting the future of the American union were likely to be handled with some degree of delicacy and care. The provision of Article VI cited above concerning the ability of individual states to levy certain taxes accordingly represents something rather profound. Within the realm of foreign policy, it seemed, the framers of the Articles were willing to delegate to Congress the authority to restrict a given state(s) from exercising one of its sovereign powers.

Granted, the circumstances in which this clause would have come into effect were quite limited. Likewise, it bears remembering that one of the main reasons that Congress authorized the drafting of the Articles of Confederation – and accordingly sought to create a permanent national government – was to facilitate the foreign relations of the union of states in a manner than ensured consistency and effectiveness. It would therefore seem only reasonable that the framers of the Articles should have been more willing to assert the primacy of national prerogatives within the realm of diplomacy than in most other policy areas of strictly domestic significance. All the same, the cited text of Article VI still represents an exceptional assertion of power on the part of the nascent United States government.  Doubtless it would have been something of an open question whether or not Congress actually possessed the means to prevent any state from levying such duties or imposts as its citizens saw fit – a conundrum discussed at length in a previous entry in this series – though that would seem to be rather beside the point. For the framers of the Articles to have claimed such a power for Congress at all provides a strong suggestion as to their desired delineation of state and national authority as falling within distinct domestic and foreign spheres.

Several provisions within the text of Article IX appear to confirm this impression. The section opens, for example, by stating that,

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article – of sending a receiving ambassadors – entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever [.]

Examining the various clauses of this opening litany one by one, the framers of the Articles evidently found it necessary to first and foremost reiterate the singular power of Congress within the realm of foreign policy. While, “The cases mentioned in the sixth article” – which permitted states to take up arms in the event of their either being invaded or demonstrably threatened by invasion – would seem to weaken this otherwise plain and unequivocal assertion of authority, a moment’s consideration serves to reinforce the strength thereof. Granting a state government the ability to mobilize its military resources in an act of self-defense does not entail allowing them to decide the course and outcome of the resulting conflict. Whatever the cause of the war in question – however it started and whatever immediate response was made necessary by contemporary communications technology – Congress, “Shall have the sole and exclusive right and power of determining on peace and war [.]” With armed conflict yet raging between Britain and the nascent United States of America, this was doubtless understood to be both a necessary and desirable assertion.

            As to the diplomatic affairs of the United States of America, the cited text of Article IX evinces a similar attempt to balance the needs and the authority of the national government with those of the state governments. In addition to determining upon matters of war and peace, Congress was to possess sole authority in the realm of, “Sending and receiving ambassadors [and] entering into treaties and alliances [,]” provided that the relevant agreements did not place restrictions upon certain legislative prerogatives possessed by the states. Combined with the previously-discussed provisions of Article VI concerning the ability of Congress to restrict the diplomatic activities of the states, the balance of power would seem to be distinctly tilted in favor of the national government. While the states could accede to foreign treaties or alliances, expect foreign persons within their jurisdiction to pay the same taxes required of their citizens, and prohibit the import or export of whatever “goods or commodities” they pleased, Congress reserved the right to deny their diplomatic aspirations and restrict their ability to levy duties or excises that directly conflicted with its own aims and intentions. As with the war powers described by Article IX, discretion here seemed to lay chiefly with Congress, and exceptions in favor of the states were both few and very specific. Dickinson and his committee were evidently of the opinion that – save for in certain relatively uncommon cases – it was more important that the government of the United States be permitted to speak to the rest of the world with confidence and consistency than for the constituent republics thereof to at all times enjoy the exercise of every prerogative to which their sovereignty ostensibly entitled them.

            Likely more arcane to the average 21st century observer – but no less important to the discussion at hand – are the clauses of Article IX which sought to assert Congressional authority over prize courts and privateers. By way of explanation, prize courts are a type of tribunal – once quite common but now virtually obsolete – wherein cases having to do with the capture and disposal of property seized in time of war are heard and decided. Most often applied to vessels taken at sea, these tribunals were responsible for deciding whether the relevant capture was legitimate under the rules of war, how or whether the vessel was to be liquidated, and to whom the resulting funds were to be disbursed.  Bearing all of this in mind, the United States government was to be possess – on the authority of the aforesaid Article IX – sole responsibility for,

Establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in service of the United States shall be divided or appropriated – of granting letters of marque and reprisal in times of peace – appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

With all due respect to the rich history of prize courts in the Anglo-American world – and in particular to those noble few who have made a career of studying the same – the minutiae of this passage are relatively unimportant. The states had already established their own prize courts and issued commissions to privateers by the time the Articles of Confederation were being drafted and debated in the late 1770s, and the cited text would seem to betray no hint of any intention to change this arrangement in practice. Rather, the framers of the Articles appeared only to desire the application of a degree of Congressional oversight.

    It perhaps also bears noting at this point that the creation and administration of prize courts in America had, previous to the declaration of independence in 1776, fallen under the jurisdiction of the British Admiralty – led by the Crown-appointed Lord High Admiral. The commissioning of prize courts by the states upon the outbreak of the Revolutionary War accordingly represented a (unilateral) transfer of power from a national authority to a series of local ones. The relevant text of Article IX, while not necessarily seeking to reverse this exercise in decentralization, nevertheless constituted a reaffirmation of national responsibility over some of the basic practices of maritime warfare within the jurisdiction of the United States of America. The framers of the Articles did not intend for Congress to claim sole authority over the creation and direction of prize courts, as the cited text makes clear. Rather, they merely asserted that Congress would be solely responsible for setting the rules by which prize cases were decided and for establishing courts to hear the appeals thereof. Just so, rather than forbid the states from issuing letters of marque – by which privateers could claim the right to prey upon the vessels of an enemy nation – in all cases whatsoever, Article IX instead reserves to Congress the sole responsibility for granting such commissions only in times of peace. Along with the accompanying assertions of Congressional authority over the trial of piracy and other crimes committed on the high seas, these careful delineations of power appear to have been constructed around a fairly straightforward objective. With all due deference to present circumstances, Dickinson and his committee seemed to have desired the restoration of a familiar dynamic whereby matters pertaining to maritime law were to ultimately be decided at a national rather than local level.

Friday, March 30, 2018

Articles of Confederation, Part VIII: A Quality of Deference, contd.

Certain of the provisions contained within the text of the Articles of Confederation are less oblique than those cited previously in terms of the authority they appear to confer upon the resulting national government. In some instances, it seemed, Dickinson and his committee were more comfortable at least appearing to assert national prerogatives than was generally the case. As to the financial standing of the United States of America, for example, the framers of the Articles seemed quite confident – as per the text of Article VIII – that all expenses to be incurred by the union of states, “Allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each state [.]” This phrasing appears to admit of little ambiguity: there was to be a treasury, doubtless administered by Congress, to be supplied collectively by the states and to serve their common needs. Not only does this appear a fairly logical consideration – there being any number of potential projects or policies from which every state could benefit and for which no one state ought to bear the cost – but it very much accords with what is by now the expected financial relationship between the government of the United States and its many millions of constituents.

This evident sense of familiarity, however, might easily obscure a lack of any relevant mechanism of enforcement. Whereas the present government of the United States has any number of means at its disposal by which it might seek to ensure the payment of the taxes it levies upon individuals or corporations, the Articles of Confederation provided almost no method, process, or procedure through which the administration it described could seek to collect upon the requisitions it made of the states. Indeed, the United States in Congress Assembled – a phrase used more than once in the text of the Articles as the formal name of the government of the American union – seemed almost wholly incapable of enforcing its will upon the states in any context, let alone the exceptionally sensitive area of taxation. In consequence, the text of Article VIII – along with several other provisions that appear unequivocal but which in practice were relatively meaningless – seems to present something of a paradox. Congress, it appeared, was intended to administer a common treasury as a means of defraying the shared expenses of the states, and accordingly to collect such funds from the states as deemed necessary for the maintenance thereof, at the same time that it was almost wholly restrained from coercing the states to do anything at all. Bizarre though this construction may appear – and indeed, as it may be – it would not appear particularly out of step with the essential character of the Articles, the resulting national government, or the men responsible for the creation thereof.

If the framers of the Articles were nothing else – if they were not competent, if they were not insightful, if they were not up to the task of creating an effective national government – they were most definitely optimistic as to the future prospects of the United States of America. Their belief in the inevitability of the nation’s territorial expansion (see Articles IX and XI) speaks to this conviction quite clearly, as do their apparent efforts to foster the legal, commercial, and cultural integration of the various states (see Article IV). This sense of confidence might well have allowed the authors of the Articles to see beyond the admittedly strained material circumstances of the contemporary moment – i.e. a war with the most powerful empire in the history of the world that had yet to turn in favor of Congress – and provide tools and guidance by which the American people could succeed in meeting the obstacles and the opportunities their collective future yet held. This lofty and far-reaching perspective was not, however, without its drawbacks. While Dickinson and his committee possessed vision enough to foresee the need for a common purse – or more broadly for a means by which the states might seek to undertake shared endeavors in time of peace – they evidently could not bring themselves to in any way give Congress the power to collect the money they envisioned it someday disbursing. That they did nothing to address the resulting contradiction – either by removing any mention of a common treasury or providing some means by which needed funds might be collected – in turn represents perhaps their greatest failure. By leaving in place the various expressions of their optimism without also supplying the appropriate mechanisms that might have seen that optimism fulfilled, the framers of the Articles created a national government for the American union that was arguably doomed to dysfunction.

Consider, by way of evidence, several more lines of the text of Article VIII. As mentioned above, this section was particularly concerned with providing for the maintenance of a shared treasury by and for the United States of America. As to the means by which that treasury was to be sustained, all value for the purpose of taxation, it was stated, “Shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.” While, on its surface, this would seem a fairly straightforward and easily-observed directive, the clause which immediately followed portended significant complications. “The taxes for paying that proportion,” it read, “shall be laid and levied by the authority and direction of the legislatures of the several States [.]” In consequence, while Congress was responsible for assessing the value of all property within the states for the purpose of taking receipt of the proportion each state owed to the national treasury, only the states could levy and collect the resulting taxes. Faithful though this arrangement may have been to the principle of delegating taxing authority to the body in which the taxed are directly represented – a conviction for which, among others, many Americans were lately demonstrating their willingness to fight and die – it could not have but begged a number of uncomfortable questions. What would have been the result, for example, if Congress requested a payment for which a given state(s) declined to generate revenue? Likewise, what would occur in the event that Congress and a given state(s) disagreed as to the value of a particular piece of property? The text of the Articles could provide no solutions to these kinds of difficulties, chiefly because the authors of the same were similarly bereft of any means to reconcile their vision with their principles.

Clauses contained in Article IX and Article XIII would appear to present similar examples of powers or characteristics being attributed to the government of the United States absent the accompanying mechanisms for their practical realization. The former, while seeking to describe the means by which Congress might occasionally be forced to request the service of military forces raised by the states, notably included the specific declaration that these selfsame requisitions, “Shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and clothe, arm and equip them in a soldier-like manner, at the expense of the United States [.]” In the context of 18th and 19th century American history, this would seem a fairly reasonable directive for Congress to have at its disposal. As early as 1794, during a major anti-tax protest in Western Pennsylvania commonly known as the Whiskey Rebellion, the government of the United States had reason to summon militia forces from a number of states for the purpose of enforcing federal law. A more famous – and perhaps more consequential – instance of this same prerogative being invoked occurred in May, 1861 when President Abraham Lincoln (1809-1865), confronted by a Southern rebellion, requested the service of nearly 120,000 volunteer militiamen from the states that continued to recognize the authority of the federal government. In both instances, the justification for Congress and the President issuing the relevant orders was to be found in Article I, Section 8 of the Constitution. “Congress shall have the power,” the appropriate passage declares, “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions [.]” And while this specific provision – or indeed any of those detailed in Section 8 – was not accompanied by language detailing the means by which Congress might ensure obedience in seeing the relevant commands carried out, the Constitution as a whole provides a number of mechanisms by which the government of the United States might either punish or coerce the states in the event of noncompliance.

It should by now be taken as a given that the Articles of Confederation contained no such means of ensuring submission to its directives. Under the auspices of the resulting national government, Congress could not easily withhold or make an incentive out of grants from the common treasury – for which it had no reliable means to collect funds to begin with – assert its control over the relevant state militia – the raising and staffing of which fell to the various states legislatures – or threaten to bring suit against the state in question in a federal court of law – made impossible by the fact that there were no federal courts under the terms of the Articles. For Dickinson and his committee to inscribe into the text of the first governing charter of the American union that all military requisitions made by Congress of the states “shall be binding” was therefore in effect to say nothing at all of substance. Practically speaking, if the national government described by the Articles asked, say, the state of Virginia to supply two militia regiments for the purpose of putting down a rebellion, countering an invasion, or taking part in a punitive expedition into a neighboring territory, the choice of doing so or not would lie entirely with the state in question. In this hypothetical scenario, the government of Virginia could agree to fulfil the requisition, having recognized that the resolution desired by Congress was likely to serve its interests as well, or it could refuse to do so, having decided that its resources were best put to use elsewhere. The national government would have no practical means to either encourage one outcome or punish the other, the cited text of Article IX notwithstanding.

The first paragraph of the thirteenth and last of the Articles of Confederation contains perhaps the most ambitious of all declarations contained therein as to the ability of the resulting national government to assert itself upon the states. “Every state,” the passage in question asserts,

Shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual [.]

Formalistic language aside, the basic premise of this provision is that the various states were to be bound by the decisions rendered by Congress, that the text of the Articles was to be similarly binding, and that no state was to reserve to itself the right or the means of withdrawing from the union. Ignoring for the moment the cited text of Article II – whereby the states were to retain their “sovereignty, freedom, and independence” – Article XIII would thereby appear to imply that Dickinson and his committee envisioned membership in the American union as having a restrictive effect upon the discretion of the states. If, for example, Congress issued a directive which the government of a given state disagreed with, a strict adherence to the text of Article XIII would seem to offer little choice but acquiescence. Likewise, if a state government determined, after a period of years, that continued membership in the American union no longer aligned with the best interests of its constituents, Article XIII would seem to wholly preclude said government ever acting upon its desire for separation. For a document that opened with an assertion of the continued autonomy of the parties it sought to effect, these would seem to be wholly contradictory limitations.  

In practice, of course, there was nothing for the states to fear in the text of Article XIII. Lacking virtually any means by which to penalize the denial of its directives, Congress could no more ensure the inviolable observation of either its authority or the core provisions of the Articles than it could declare the Moon to be the fourteenth state in the union. Individual states could – and in practice, often did – ignore “the determination of the United States in Congress assembled” with impunity, pursue whatever course of action they felt would best serve their needs, and generally comport themselves as though no national government existed at all. As to secession, while it did not occur – or even realistically threaten to occur – during the lifetime of the United States government under the Articles, there was little in the structure of the confederation or the mechanisms at its disposal to dissuade states from pursuing such a course. In the event that, prompted by the determination of the government of a given state to separate itself from the American union, Congress called upon the remaining states to provide the military force necessary to prevent the partition from occurring, the result would surely have been yet another intractable impasse. For as functionally incapable as the national government under the Articles would have been of preventing a state from leaving the union, so too would it have been at a loss to coerce the remaining states into turning their arms upon their fellow Americans.

Granted, this kind of scenario was almost certainly the last thing that Dickinson and his committee envisioned when they crafted the text of Article XIII. No doubt they indeed desired for the union of American states to be perpetual, harmonious, and effective, but never at the cost of limiting freedom or threatening civil war. Recognizing the sovereignty of the states and of their citizens appeared always to have been foremost in their minds as they set to work on the various clauses and provisions that came to comprise the Articles of Confederation. Rather than command the obedience of the states, it seemed, as a matter of law, the United States in Congress Assembled was ostensibly intended to encourage loyalty based on its ability to offer the states a forum for collective action and its inability to infringe upon their rights as sovereign entities. Pleasing though this might have been to contemporary philosophical sensibilities, however, it represented an extremely flimsy basis on which to erect a functioning government. This becomes particularly obvious when one considers the sheer number of contradictions or loose ends embedded in the relevant text. Empowered to administer a shared treasury, make military requisitions of the states, and enjoin continued adherence to and membership in the American union, Congress wholly lacked the means by which it could achieve any of these outcomes. It could not demand of the states, or direct them, or order them. Rather, it could do no more than ask. In this, the fault seems once again to lie with the framers for failing to restrain themselves from giving the national government statutory authority in areas they were simultaneously unwilling to vest it with practical power.

In was as if, caught between erecting a government that fostered and pursued clear national priorities and one that merely facilitated reasonably harmonious relations among the states, the framers of the Articles leaned heavily towards the latter without completely abandoning their interest in the former. Doubtless it would have been simpler if they had given up any hope that the United States of America would become a nation in and of itself – that there would come to exist something like a national will in which every state and every citizen could identify their respective interests. Instead, faced with either eliminating any references to national prerogatives or providing the means that might have seen them accomplished, Dickinson and his committee seemed to have instead thrown up their hands and left things standing in some awkward middle ground as though the ability of Congress to function as the Articles described would materialize via some unknown alchemical process. The result was a truly chimerical creation whose lack of internal consistency invited dysfunction and malaise. Certainly it aligned with the ideological proclivities of the Continental Congress and the majority of their supporters in the states – unsettled as they were by the idea of giving rise to an institution powerful enough to command the states to action – to so limit the authority of the first permanent national government in Anglo-American history. But providing some degree of philosophical reassurance may have been all that it could accomplish of its own accord and on its own merits, so beholden was resulting regime to the inclinations of the states. 

Friday, March 23, 2018

Articles of Confederation, Part VII: A Quality of Deference, contd.

The discussion of the previous week notwithstanding, it is worth reiterating here that the Articles themselves did not – indeed, were not intended to – achieve the complete and irreversible integration of the various American states into a singular national whole. The degree to which the resulting national government deferred to the discretion of the individual states, thereby allowing them to maintain their particular character or impress their specific prerogatives within and upon the national sphere, makes this especially clear. Consider, to that end, certain of the provisions outlined in Article V and Article VII. The former, denoting the mechanism by which the legislatures of the various states would select delegates to represent their state in Congress, notably asserts that said delegates, “Shall be annually appointed in such manner as the legislatures of each State shall direct [.]” While this would seem in large part to mirror the procedure later established by the Constitution for the election of Senators – Article I, Section 3, superseded in 1913 by the Seventeenth Amendment – an additional clause introduces a significant wrinkle. Whereas the provisions of the cited Article V and of the aforesaid Article I, Section 3 were surely both constructed with the intention of ensuring that the several state governments would have a direct voice in the national assembly of the United States through the medium of appointing some or all of the members therein, only Article V reserved to the states the power, “To recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.” The importance of this clause – as which so much of the text of the Articles of Confederation – lies in its symbolic implication as much as its functional effect.

Granting that the Articles only allowed delegates to serve in Congress for a term of one year – and further disqualified them from serving more than three years in any term of six –additionally permitting state legislatures to replace their representatives at any point during that annual term would seem on the surface to be of little practical consequence. Even in the event that a delegate was recalled and replaced after serving for only one day in Philadelphia – in consequence, say of a last-minute favor done by the speaker of a given state legislature to an individual with which they hoped to gain influence – the longest the citizens of that state would be forced to endure the effects of such rank abuse of power was three hundred and sixty-four days. With many states themselves operating on an annual election cycle, the likelihood of partisan turnover and a resulting shift in the dynamics of state appointments within that same hypothetical span of time would have been fairly high. This mutability in the character of state governments, however, is also what makes the cited provision of Article V so significant.

Under the terms of Article I, Section 3 of the Constitution, state legislatures were responsible only for appointing Senators to six years terms rather than also possessing the power to recall them at will. In consequence, regardless of the changes that may have occurred within a state between its selection of a given individual to serve in the Senate and the moment that their term expired – be it an election, the collapse of a longstanding government amidst a corruption scandal, or the drafting and ratification of a new state constitution – nothing but the death or resignation of said individual would allow the state legislature in question to alter the effect of its prior appointment. The resulting balance of responsiveness and stability was most certainly by design. As hashed out by the Framers through intense negotiation and compromise, the United States Senate was to simultaneously serve as the most direct reflection of the states as sovereign entities within the federal government and provide a degree of solidity and unhurried reflection incapable of being sustained by either the House of Representatives – whose members enjoy only two year terms – or the Presidency – whose occupant takes comparative solace in their four years of election-free governance. Its members therefore effectively represented – again, under the now-defunct terms of Article I, Section 3 – a kind of snapshot of state government as it existed at the time of their election and which may have ceased to at any given time during their term in office. Being thus simultaneously connected to and disconnected from state politics, Senators could perform the double task of serving the interest of their state within the national legislative process as well as offering a perspective substantially detached from the often chaotic churn of electoral politics.

  As cited above, the text of Article V attempts to strike no such balance. By providing the state legislatures with a means to alter the composition of their delegations to Congress at will regardless of the nominally year-long term the relevant appointees were supposed to serve, the framers of the Articles ensured that the national assembly of the United States would represent the states both as sovereign political entities and as partisan battlegrounds. Having chosen a group of individuals to represent the needs of their state in Congress, for example, the relevant government may thereafter be replaced via election by a new government whose members understandably desire to see the delegates chosen by their opponents replaced with their own. There being no impediment within the terms of the Articles – and in fact every kind of inducement – to exactly this sort of thinking and action, Congressional delegations would thus potentially be subject to constant change and the character of the resulting national government perpetually defined by the mutability and combativeness of contemporary state politics. Doubtless this was the intention of Dickinson and his committee, to allow – to the fullest degree possible – the various states to influence and to shape the nature and direction of the United States government. Better to allow the states to dominate Congress than permit Congress to dominate the states, they evidently concluded, and in this there may well have been some well-tempered wisdom.

As experience had shown, governments that were not forced by design to consider the interests of certain of their constituents would not do so voluntarily. Indeed, they would more often than not take advantage of the inability of the relevant peoples to punish government inattention by pursuing policies that directly injured them. All that being said, it is worth make clear – if it has not been already – that the Framers of the Constitution described the Senate the way that they did in direct response to the rather extreme reaction of the Articles to exactly this problem. It may indeed have been desirable in theory to create a national government for the American republic whose composition was legally bound to the ebb and flow of state elections and state politics, thus ensuring that said government was functionally incapable of ignoring the issues or concerns that most strongly animated its constituents. But as the economic and political instability that characterized the immediate post-Revolutionary era rather effectively demonstrated, successfully governing the United States of America required something more than an ardent dedication to theory. Given more favorable conditions – an abundance of hard currency, freer access to foreign markets, and so forth – the Congress described by Article V may well have functioned as an adequate forum for debate, cooperation, and mediation among the states as they set to work paying off their debts and settling their borders. Conditions in the 1780s were not favorable, however, as dire financial straits drove many states into competition with one another and Congress essentially floundered.

That the framers of the Articles did not foresee this possibility would seem to speak once more to their abiding idealism. It evidently did not occur to them that an economic crisis was looming, or that it would be accompanied by political turmoil. In consequence, they sought to create the a national government for the United States of America based almost entirely on the notion that interstate cooperation was both forthcoming and would prove a sufficient foundation for perpetual political union. The terms of Article VII provide further evidence of this rather optimistic perspective – and of the willingness of Dickinson and his committee to allow the states to dominate the national sphere – particularly when juxtaposed with a specific passage of the aforementioned Article IX. The former, speaking to the collective security aspect of the American union, declared that,

When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

In fairness, there would seem to be a number of fairly practical reasons why a group of Congressmen working in the late 1770s to create the first national government in the exceedingly brief history of the United States would happen upon this kind of provision. First and foremost, the arrangement described therein would have served to perpetuate an existing procedure with which all concerned and effected parties were already quite familiar. As Congress had – since 1775 – reserved to itself the right of appointing all general officers in service with the Continental Army, so it also left the selection of all other commissioned officers to the legislatures of the states under whose authority the relevant military forces had been raised. Maintaining continuity with this practice following the adoption of the Articles – particularly in the context of an ongoing war – was almost certainly viewed by the authors thereof as being both eminently sensible and accordingly desirable.

            Given both the relative novelty of a distinctly “American” military apparatus, it seems quite likely that Article VII was to some degree also intended to ensure that American soldiers would never be asked to serve in a regiment whose commander was not from the same state as his men. The use of the rank of colonel as the dividing line between state and national authority appears particularly telling as to this intention. Regiments being the primary combat unit of European-style armies in the late 18th century, and colonel being the customary rank of a regimental commander, the allocation of general officer appointments to Congress would seem an effective guarantee that only regimental commanders would be forced to take orders from men who were not residents of their own state – and even then, only in situations wherein the use of more than one regiment was necessary. In the event that the United States was forced to react to a major military emergency, therefore, the vast majority of soldiers called to national service – including the majority of officers – would be spared the potentially uncomfortable task of obeying the orders of someone whose birth and education would still likely have marked them out as foreign.

Though this may seem a rather trifling concern in the context of the large, diverse, and highly-organized national militaries of the 20th and 21st centuries, it was most certainly not so at the end of the 18th century. Regiments, at that time in the history of European-style warfare, were highly geographic in nature, drawing their manpower, traditions, and their esprit de corps in large part from the region in which they were located and after which they were often named. To be a member, say, of the 1st Massachusetts Regiment therefore entailed something more than simply being assigned to one unit in particular out of any number then in service. Rather, it denoted an individual soldier’s relationship to a particular community, to his fellow soldiers who were also members of that community, to his commanding officers, and to the nature of his service. The morale generated and sustained by this web of geographic and communal ties was essential to the proper performance of a given regiment when called upon in battle, and could be easily disrupted – particularly given the relatively parochial temperament of the average 18th century American – by the introduction of a figure from outside this socio-cultural framework who nonetheless claimed authority over its members. Certainly is was expected that a Virginia regiment, a Pennsylvania regiment, and a Georgia regiment under the command of the same general officer would obey their orders regardless of the origins of the officer in question. But this was almost entirely because said regiments would be under the direct control of colonels chosen by the relevant state legislatures whose men had – ideally – come to invest in them a great deal of trust and affection. That the framers of the Articles understood this – that they were familiar with the realities of contemporary warfare – and proceeded accordingly would thus seem eminently explicable.      
            A somewhat more specific reason for the existence of the aforementioned Article VII would seem to stem from something less mundane than mere military logistics. Recalling the origins of the American Revolution in the tensions that had arisen in the 1760s between a distant and highly-centralized government in Britain and the various colonial governments in America – and further calling to mind the role played by British military officers like Thomas Gage (1719-1787) in hastening the beginnings of armed conflict between them – there doubtless remained a great deal of fear and suspicion in Congress and among its supporters surrounding the notion of concentrated institutional and military power. Indeed, the structure of the Articles of Confederation in large part appears to have been designed to assuage exactly this sense of disquiet, mainly by preventing the resulting national government from being able to exert anything like the coercive force at the disposal of Parliament. By declining to authorize the creation of a standing national army – a perennial source of distrust in the Anglo-American political tradition – and further prohibiting Congress from either raising regiments on its own authority or appointing the commanders of those raised by the states, Article VII in particular seemed to quite effectively confound this possibility. In the unlikely event that Congress ever became sufficiently divorced from the influence of the states to attempt the enforcement of its directives upon the same, it would find itself capable only of calling to service and appointing general officers to command regiments created and staffed by the states themselves. As it would seem equally unlikely that any state regiment – led by a colonel chosen by the relevant legislature – would answer such a call or permit itself to be put to such a use, the prospect of a national military establishment ever coming to dominate the states would appear virtually impossible.

            The degree to which the framers of the Articles felt confident they had taken the necessary steps to foreclose upon the likelihood of a military confrontation between the states and the national government is made clearer yet by certain unaddressed ambiguities of Article VII and Article IX. Whereas the former – cited in full above – reaffirmed the authority of the states to appoint “All officers of or under the rank of colonel” attached to the regiments raised under their auspices, the latter contained a clause which stated that,

The United States in Congress assembled shall have the sole and exclusive right and power of […] commissioning all officers whatever in the service of the United States – making rules for the government and regulation of the said land and naval forces, and directing their operations.

Consider, for a moment, how these two provisions might interact in practice. By the terms of Article VII, the state legislatures were solely responsible for appointing all officers in their service below the rank of colonel. By the cited terms of Article IX, Congress was solely responsible for commissioning all officers whatsoever in the service of the national government. Because a military officer who has been duly appointed cannot formally assume their command until they have first received their commission from the appropriate authority, it would seem as though – under the authority of the Articles – Congress might have conceivably possessed the ability to decline to recognize the relevant state appointments in the event that the regiments in question were called into national service. The further assertion that Congress was also exclusively responsible for “making rules for the government and regulation” of the forces in question would appear to affirm this state of affairs by effectively allowing the national government to set the terms under which national military service was to be performed.

            In fairness, the notion that this apparent ambiguity would have led to conflict between the state governments and the national government – or that the evident interaction of Articles VII and IX even represents an ambiguity – represents little more than supposition. The cited provisions are somewhat unclear as to the precise objects they intend to regulate, particularly in terms of the authority granted to Congress in either commanding or regulating military formations. It is not immediately obvious, for example, to whom the phrase “all officers whatever in the service of the United States” was intended to refer. It may have been reasonable to interpret the intended party as being comprised of all military officers intended to serve under the authority of Congress at a time of national emergency regardless of which body originally appointed them. At the same time, it may also have represented a sensible reading of this clause to regard its subjects as being only those general officers appointed by Congress to positions of command during the appropriate period of national need. Likewise, the affirmation of Congressional authority to govern and regulate all land forces under national command in no way indicates precisely what form the relevant oversight was intended to take. Would Congress be permitted to restructure the state-raised regiments that it called to service? Could Congressmen conceivably begin to dictate how the relevant military units administered discipline or organized their command staff? As with the purported national authority over commissions, the meaning of this clause simply isn’t clear.

            In light of the otherwise weak and inactive nature of the national government described by the Articles, however, this evident lack of clarity likely presented little cause for concern. If Dickinson and his committee even perceived the implications of the provisions cited above – the clauses which appeared to place an unusual degree of power in the hands of Congress – whatever fleeting concerns they might have felt were doubtless swept aside by a shared recollection that the government they had created was so completely bound to the will of the states as to effectively nullify the possibility of an intractable confrontation between them.  Under the terms of the Articles, in short, Congress would be essentially incapable of exerting its will upon the states because it would possess no will that was substantially separate from theirs. By ensuring that delegates to Congress – the only officers of the United States government as described by the Articles – were to be appointed, recalled, or replaced by the various state legislatures at any time of their choosing, the aforementioned Article V effectively made this a foregone conclusion. Even in a time of emergency during which Congress might reasonably choose to exercise its authority to summon state military formations to national service, the men responsible for commissioning the relevant officers and governing and regulating the relevant formations would be exceedingly unlikely to act in opposition to the interests of the states to whose governments they owed their authority. Thus, by its very nature, the national government described by the Articles was seemingly prevented from ever exercising the kind of military coercion most feared and detested by the people it was intended to serve.

Friday, March 16, 2018

Articles of Confederation, Part VI: A Quality of Deference

            Significant though many of the lesser-known provisions of the Articles of Confederation may be to understanding how and why the United States looks and acts the way that it does, the defining characteristic of that document and the government it framed arguably has to do with what it lacks rather that what they possesses. That is to say, it isn’t what the Articles claimed that the national government of the United States of America could specifically do that defined said government during its lifetime and in the centuries since its replacement. Rather, it was the many and various things that the Articles either chose not to assign to the resulting national administration or which it specifically delegated to the states. Compared particularly to that which was described by the later Constitution, the United States government under the Articles was exceptionally small, non-interventionist, and deferential. Indeed, in almost every case in which the Constitution declare the primacy of federal power, the Articles bow to the sovereignty and the discretion of the individual states. The result, upon reflection, is both a study in contrasts and an object lesson. For every question as to the nature of federal power, every reflection upon the necessity of a given national prerogative, the Articles effectively stand as both answer and caution. There was a time, they clearly show, when the government of the United States was much smaller, much weaker, and much less active. And likewise there is a reason – a host of them, even – that this is no longer the case.

            Among perhaps the strangest aspects of the manner in which the Articles define the intended relationship between the resulting national government and the various states has to do with the basic terminology that the relevant text often use to describe said states. Whereas the Constitution proper only really contains a single instance in which the federal view of the individual states is made explicit – i.e. the declaration of Article IV, Section 4, that, “The United States shall guarantee to every State in this Union a Republican Form of Government,” as well as offer protection against invasion and domestic violence – the Articles go to significant lengths to make clear that the national government recognizes and respects the sovereignty and autonomy of the same. Article II, for example, asserts that, “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.” While the general spirit of this affirmation would seem to be substantially similar to Tenth Amendment’s pledge that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people [,]” the difference in vocabulary is both striking and substantial.

Nowhere does the Constitution explicitly assert that the states are sovereign, autonomous, free, or independent. While this may appear to be simply a matter of form – there being no belief at the time the Constitution was drafted in 1787 that the states were otherwise than sovereign entities – it nonetheless speaks volumes. What the Constitution seems to take for granted – being more concerned with erecting a stable and effective national government – the Articles make a point of acknowledging first and foremost. The states are independent, capable of autonomous action, and secure in their powers, rights, and jurisdiction, the framers of the latter declared, in effect setting the tone for all that would follow. Article III subsequently builds on this primary condition, asserting that,

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security 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 them, on account of religion, sovereignty, trade, or any other pretense whatever.

Consider the major difference between this explanation of the purpose of the union of states and that which is offered by the introduction to the Constitution. While the latter firmly establishes the primary beneficiaries of the American union as being, “We the People of the United States,” whose intention is to, “Secure the Blessings of Liberty to ourselves and our Posterity,” the former makes it exceptionally clear that it was the states that were assenting to their newfound association. While this might likewise be described as an aesthetic choice rather than a philosophical one – the states being the embodiment and representation of the American people – this once again fails to lessen its significance.

            In its phrasing, structure, and even the manner of its ratification, the Constitution was intended to establish a firm connection between the citizens of the United States and the national government thereof. The Articles of Confederation are conversely very state-focused, characterizing the American union as a function of the will of the states and an extension of their needs and desires. The description offered by Article III is accordingly somewhat utilitarian. Rather than seek to protect and promote abstract concepts like justice, tranquility, or liberty, it declares the purpose of the United States in terms more akin to a 20th century mutual-defence pact or economic union than a national constitution. The terms of Article IV seem to further this resemblance by specifically stating that,

The free inhabitants of each of these States […] shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce [.]

Not only could this description be fairly applied to the customs and border control agreement that currently exists within the European Union, but it also implicitly begs a rather important question. Had the framers of the Articles not seen fit to include this clause within the text of Article IV, would the individual states have been disinclined to allow freedom of movement, commerce, and residence to each other’s citizens? Taking it for granted that Dickinson, his committee, and their fellow Congressmen would not have wasted the requisite time and effort required to draft this provision were it otherwise, the answer would seem to be in the affirmative. That being the case, then – the states being so inclined to see themselves as sovereign and autonomous as to require a specific provision of their “league of friendship” mandating that they recognize the rights and privileges of their counterparts’ inhabitants – the cited descriptions of the American union as being between sovereign states rather than a sovereign people would appear to have been both appropriate and expected.    

            Article IV contains two further provisions which likewise speak to this somewhat fragmented perspective on the United States of America, though to a more lasting degree than those cited above. The first reads something like a general extradition treaty. “If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State shall flee from justice” it asserts,

And be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Article IV, Section 2 of the Constitution contains a slightly more succinct version of this same clause. Evidently, whether governed under the Articles or its comparatively centralized and forceful replacement, specific provisions are required for the constituent states of the American union to assent to the rendering up of violators of each other’s laws. That the former provided this mechanism first, however, remains noteworthy. Whereas the cooperation of the states is in other respects implicit in the text of the Constitution, the Articles nowhere seems to take for granted the fact that the entities it was attempting to bind together were in many respects disinclined to think of themselves as integral elements of the same sovereign nation. A criminal in New Hampshire would not have been considered a criminal in Delaware, in short, absent formal language to that effect.  

The other significant clause of Article IV, which declares that, “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State [,]” was also replicated in the Constitution – Article IV, Section 1 – and likewise gives evidence of the primordial sense of nationhood that the Articles very cautiously sought to encourage. Upon reflection, its necessity is rather obvious. Prior to the creation of the Second Continental Congress in 1775, the First Continental Congress in 1774, the Stamp Act Congress in 1765, or the Albany Congress in 1754 – that is to say, before the Revolution or any of the events that immediately preceded it – the Thirteen Colonies were united only by their language, their culture, and their common connection to the British Crown. There existed no formal mechanism of cooperation between them, and indeed – as the controversy which precipitated the founding of Vermont clearly demonstrates – rivalry and competition were as common as harmony among their number. In consequence, while the events of the 1760s and 1770s most certainly drew the colonies closer together then had previously been the case – to the point that they participated in and recognized the authority of a common government in the form of Congress – there remained no tradition or precedent for any given state to recognize the laws or judgments of any other. New York, for example, would have had no ground to stand on if it suddenly insisted that the findings of its courts were valid in Connecticut or New Hampshire. The colonies-cum-states were born of different origins, recognized different legislative forms and traditions, and possessed individual bodies of law. However much the Anglo-American crisis forced their interests to converge around a set of common objectives, there was no reason to assume that this would cease to be the case.

That the Articles aimed to change this – as made clear by the cited text of Article IV – carries several significant implications. On one hand, it seems fairly obvious that the framers of the Articles – and Congress more generally – intended to more closely integrate the various states which comprised the American union. By breaking down existing legal barriers – thus enabling a New Yorker lawyer to live in Connecticut, get married in Virginia, and work in Pennsylvania without suffering any ill effect – the cited clauses would seem to have no other purpose than to achieve exactly that. Presumably the long term objective of such an endeavor was envisioned as a gradual intermixing of the various American peoples, to the point that residents, say, of the Carolina backwoods would have no reason to think of Massachusetts merchants as anything other than countrymen, each as bound to recognize the rights and liberties of the other as they were to respect the authority of the states in which they each lived and worked. A stronger nation would surely be the result, wherein differences in form and practise in no way impeded the protection of individual rights or the promotion of the general welfare. That the framers of the Articles appeared to seek this outcome would seem to denote their common vision for what the United States could and should become – not just a “league of friendship” among sovereign states, as they themselves were given to describe it, but a nation in which every state formed a fundamental element of a tightly-woven whole.

The fact that specific provisions were required to achieve this end, however, would also seem to indicate that the forging of a united American nation, circa 1777, was hardly a foregone conclusion. Absent declarations to that effect – and the willingness of the various states to recognize them – the thirteen former colonies represented in Congress may well have remained exactly that. They were, after all, sovereign, free, and independent entities whose tendency towards cooperation was both fairly novel – in terms of their shared history – and directed more towards mutual defense than the realization of cultural, legal, or political unity. Evidently, the framers of the Articles saw this – saw precisely which conditions stood in the way of achieving their desired goal – and went about their designated task accordingly. Present conditions would not have allowed them to nullify or ignore the existence or the effect of the states, nor would they have wanted to do so. But by balancing clauses that recognized the autonomy and authority of the states with those that attempted to ameliorate their differences, Dickinson and the members of his committee arguably set in motion the process by which an alliance predicated mainly upon security and trade would evolve into a nation of shared laws, customs, and culture.