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 18^th and 19^th 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.