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. 

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