45. The Articles of Confederation

0:00Volume 4, Chapter 45, The Articles of Confederation We have just seen that in the three most important specific controversies waged in Congress in framing the Articles of Confederation, the Dickinson Draft was in one instance altered leftward, preventing Congress from seizing control of the Western lands, In another, rightward, changing the basis of taxation from total population to property values. And in another, remained unchanged, rejecting a rightward shift from equal voting by state to voting by individual congressmen representing population.

0:45Generally, however, the radicals were not awakened to the revolutionary and the revolutionary or rather counter-revolutionary significance of the centralizing Dickinson draft until Dr. Thomas Burke arrived to assume the radical leadership of Congress in the spring of 1777. Boehm-Bawerk realized the sweeping centralization implicit in the Dickinson draft, and he saw that the third article, by reserving to each state the power of internal police, consequently resigned every other power to the central government. To block this, he proposed as a substitute a crucial amendment, which as Article 2 of the completed Articles of Confederation formed the bulwark of state sovereignty against the pretensions of centralized power.

1:38In its final form, this article read, 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. This amendment shifted sovereignty and reserved powers from Congress and the central government to the states. Fighting hard for his amendment against the opposition of James Wilson and surprisingly Richard Henry Lee, Burke overcame initial reluctance and was finally able to swing eleven states to his support, leaving only Virginia in opposition.

2:24Furthermore, the Dickinson Draft had created a Council of State, functioning as a permanent executive body with irreducible powers. This provision for a virtually independent executive was excised from the Articles and and replaced by a Committee of the States, an arm of Congress, which would have no substantial power. Indeed, the completed articles, vigilant of any build-up of executive tyranny, expressly forbade Congress from vesting in the Committee any power to make war or peace, to regulate money or coinage, or any of the other fundamental Congressional powers. The Dickinson Draft had prohibited the states from levying any duties or tariffs, contradicting the provisions of any treaties made by Congress.

3:18This was amended on the floor of Congress, however, to provide that no treaty could impair the power of any state, to prohibit imports or exports, or to impose its own tariffs or for Duties, provided that foreigners and its own citizens were subject to them equally. Jensen expresses surprise that such centralist leaders as Robert Morris, James Dwayne and William Dewar supported this state's rights amendment. Rather than lamely trying to explain this vote as a concession to New York and Pennsylvania In the radicals, however, it should be clear that these arch-conservatives did not at this point wish to give up the power of the states to levy tariffs.

4:04Contrary to Jensen's implicit assumption here, merchants are not inveterate opponents of protective tariffs. The Philadelphia-New York oligarchs desired a nationwide tariff, and there was no reason at this particular point, The Articles of Confederation were completed by Congress on November 15, 1777 and submitted to the several states for the required unanimous ratification. While the radicals had succeeded in pulling much of the centralist teeth, The articles were still a momentous step from the loose but effective unity of the original Continental Congress to the creation of a powerful new central government.

4:58To that extent, they were an important victory for conservatism and centralization and proved to be a halfway house on the road to the Constitution. The first few articles of the Articles of Confederation and Perpetual Union were sensible agreements among the several states, rather than the erection of a central government. Thus, apart from Article 2's declaration of state sovereignty and reserved powers to the states, the states pledged mutual defense, mutual privileges and immunities among the citizens of the respective states, and full faith and credit to the acts and judicial proceedings of the other states. Thereafter central power began to assert itself.

5:47While the prohibition on any states engaging in its own foreign diplomacy, treaty or war seemed sensible, the prohibition against any states having an army or navy not approved by Congress was an important seizure of the power of force by Congress. So too was the compulsion on each state to maintain a militia and the requirement that each state supply revenue to Congress in proportion to its land values. Congress, however, had to rely on the states to meet these requisitions. So also was the power vested in Congress to be the final court of appeal on all boundary or jurisdictional disputes between states Congress acquired the sole power to regulate the alloy and weight of all coins, whether minted by itself or the states, to establish post offices and exact postage, and to appoint all naval officers and all army officers over the rank of colonel, and to direct their forces.

7:00Congress also had the power to requisition soldiers from the states in proportion to the number of their white inhabitants, thus privileging slave states who did not have to supply soldiers in proportion to their slaves, and to borrow money or emit bills of credit, that is paper money. A key clause, Article 12, provided that all previous debts and bills of credit emitted by Congress would be deemed payable by the new government, thus setting a precedent for compulsory visiting of the debts of the past upon future generations. The Union, too, was made compulsorily perpetual with unanimity of every state legislature as well as approval by Congress required for any alteration of the Articles of Confederation.

7:56For such fundamental decisions as declarations of war, issue of letters of marque, also reserved solely to Congress, making treaties, coining or regulating money, voting common expenses, issuing bills, borrowing money, or raising armed forces, the vote of nine states, voting equally by states, was required. This provision completely abandoned the requirement of unanimity, which had been needed to do Each delegate to Congress was to be elected annually by the state legislatures. The democratic and libertarian belief in rotation in office as a vital check upon the building up of entrenched political power was represented in the prohibition in the Articles against The Articles were not exactly received with huzzahs. Rather, they were greeted quietly and dutifully as a needed part of the war effort against Britain.

9:20One of the keenest critiques of the articles, as might be expected, came from Thomas Burke, who warned that under cover of the war emergency, eager power seekers were trying to impose a central government upon the states. He urged the North Carolina Legislature not to ratify. Not only no confederation, but no Congress would be necessary after the war. And in any case, each state must have the right to control all the soldiers within its own territory. In response, the North Carolina Legislature, controlled by radicals, expressed strong criticism of the excessive central power over the states and ratified only part of the articles.

10:08It was only at the end of April 1778 that North Carolina consented to ratify in Toto. In the South Carolina Assembly, the drive against the Articles was led by the radical leader William Henry Drayton. He warned that the central government would seize effective sovereignty under the Articles and attack their vagueness and ambiguity. He also warned that constitutional precision was vital, for otherwise a consideration of the spirit of the laws would provide a ready route for congressional assumption of power in the future. He effectively quoted the great Italian jurist Beccaria to the effect that the spirit of the law would be found in the necessarily fluctuating and subjective interpretations, and in the whims and crochets and interest of the congressmen and other concerned people at the time.

11:07He also attacked the abandonment of unanimity and proposed a vote of at least 11 states to be needed for fundamental decisions. South Carolina's ratification included numerous amendments restricting central power, including denial of congressional jurisdiction over interstate disputes. However, South Carolina, too, finally ratified the Articles in early 1778. In New Hampshire, also, the Articles were under heavy fire from the left. Town meetings considered the proposal throughout the state, and there was general dissatisfaction at real estate values as the basis of taxation. Some towns also urged that a declaration of war be required to be unanimous among the states.

11:57However, the New Hampshire Legislature passively ratified the Articles in March 1778. Massachusetts followed a similar procedure. The towns suggested many valuable changes, restricting central power, among them a required vote of 11 states for important decisions, and requiring that decisions on war and peace be left to the people of the states rather than to Congress. and yet the Massachusetts General Court meekly ratified the proposed Articles of Confederation. Connecticut offered an amendment to the Articles prohibiting any standing army under Congress in time of peace, and New Jersey partly agreed, but again these states soon fell into line.

12:48But while all other states soon ratified New Jersey and Delaware at the turn of 1778, Maryland, run by a tightly knit little oligarchy of land speculators, persisted in holding out against ratification unless the western lands were nationalized. As a consequence, the Articles of Confederation were not to be ratified and go into effect until 1781, when the Revolutionary War would be all but over.