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part to mirror the procedure later established by the Constitution for the election of Senators – Article I, Section 3, superseded in 1913 by the Seventeenth Amendment – an additional clause introduces a significant wrinkle.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 18^th 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 20^th and 21^st centuries, it was most certainly not so at the end of the 18^th 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 1^st 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 18^th 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.