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.
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