Monday, October 31, 2011

Taking Back The Articles of Confederation - Part 3

Introduction    Part 1   Part 2

The Articles Amended

From 1781 to 1787, attempts were made to amend the Articles in three areas:  (1) to give Congress coercive power to compel the states to comply with its decisions; (2) to allow Congress to collect an impost (export and/or import duties); and (3) to authorize Congress to regulate trade.  James Madison sought to accomplish the first through a proposal in 1781 to give Congress a military and naval force, which could be used against the states if needed to enforce its authority.  Congress ignored the proposal and no other coercive authority was considered again until the Constitution of 1787 (or used until the American Civil War).  The latter two areas for change were seriously considered throughout the decade.

    Although contained in the original Dickinson draft, the Articles as finally accepted denied Congress the power to regulate trade.  It became increasingly clear, however, that trade suffered from the lack of uniformity of tariffs and regulations from state to state.  The states also came to agree on giving the Congress its own source of funds.  Focus centered on the collection of import duties, which would complement Congress’ role in regulating commerce.  By 1786, all the states had reached tentative agreement to grant Congress (for 15 years) the authority to regulate commerce.  However, the various forms of approval passed by the state legislatures remained to be reconciled.  All states except New York had agreed to the impost.  New York demanded that the states collect it, not the central government.  Congress resisted this provision.  In order to pass these final hurdles, the Congress decided to review the amendments for final passage by the states.  Congress formed the Grand Committee to accomplish this review and received its report in August 1786.  Congress delayed action on the report because of a heated debate over the Treaty with Spain.  The Federalists seized the initiative and Congress never again had the opportunity to return to the Grand Committee’s report.  Still the report may be taken as the confederation’s last words on itself.

    The Grand Committee’s report took the form of seven proposed additional articles of confederation.  Article 14 gave Congress the sole power to regulate foreign and domestic trade as well as the authority to levy import and exports imposts.  To meet New York’s objection, the revenue would be returned to the states where it was collected.  The impost would have to be passed by nine (or 9/13) of the states but would then be binding on all.

    Articles 15, 16 and 17 were to meet the problem of assuring Congress a reliable income.  They called for an elaborate system for collecting the requisitions on the states.  Any state that failed to meet its quota of funds (or military forces) could be assessed an additional sum of ten percent of the quota.  If the state still failed to deliver its assessment within ten months, and a majority of the states had already complied, Congress could then collect the sum itself.  It would do so by assessing and collecting taxes in a manner, and at the rate, last used by the state itself using state tax collectors supported by state sheriffs.  Congress could appoint its own assessors, collectors and sheriffs to enforce collection if the state refused to allow its officials to be used.  Should the states or its citizens still resist, the state’s conduct would be considered “an open violation of the federal compact.”  As a last resort, Article 18 empowered Congress, with the support of 11 of the 13 states, to institute a new tax system, which would be as binding as though passed by all the states.  This latter grant was to be provisional, expiring after 15 years.

    Article 19 gave Congress the authority to define treason and piracy.  It also established a national judicial court (appointed from the states as divided into seven regions) to try and punish all officers appointed by Congress.  This Court would also serve as the Court of Appeals from state courts on treaty matters, law of nations, trade and commerce regulation, and collection of confederal revenues.  Finally, Article 20 bound the states to fill their delegations in time for the first session of Congress and compelled the attendance of individual members.

    The amended Articles would have left the confederal nature of the central government unchanged as Congress would still have been denied the ultimate power to coerce the states into obedience.  Yet the amended Articles would have allowed the states a forum for agreeing on a uniform structure for foreign and domestic trade, thus finalizing the American economic union.  The amendments would have provided the Congress with a source of confederal income – the impost – while leaving it to the states to collect and funnel the funds back to the national government.  If, in the face of majority agreement, a state refused to participate in this system, only the moral force of the compact remained as Congress’ ultimate support.  The amended Articles also would have made provision for a supreme court that would help legally bind the states, but only in those areas where they agreed to establish national law.

    The proposed amendments were in accord with the Articles as a whole.  They were consistent with a confederation of states that was not a sovereign entity but one in the service of sovereign governments.  Only when a significant majority of the states “lent” their sovereignty to the confederation did it assume the semblance of superior power, and then only a kind of “moral” superiority as the institutionalization of the compact the states had made with themselves.  This is the defining characteristic of a confederation: power flows from lower levels and “resides” at the top only at the pleasure of the confederated entities.  The amended Articles went perhaps as far as a confederal system can go to empower the center without altering the nature of the system fundamentally.

Sunday, October 30, 2011

Taking Back The Articles of Confederation - Part 2

Introduction    Part 1

The Articles Tested

    The Articles of Confederation responded to the practical necessities of the time, which at first centered on maintaining an army in the field to fight the British.  In this, the states shared one great purpose, to secure the independence they had declared together in the Declaration.  In spite of the difficulties the Continental Congress had in funding the war, the united states outlasted the British, and with the help of the French, defeated the chief world power of the day.  The confederated states passed one of the most difficult tests of any new government, winning independence.  This essential fact has been often overlooked in judging the Articles.

    The problems that the successful war left behind, however, severely tested the new confederation.  The chief problem was the debt.  The debt, incurred in order to pay for the war, threatened the ability of the new country to borrow further oversees.  Domestically, the inability to fully meet commitments to the army almost led to a military coup against the new government. 

   Perhaps the chief result of the debt was the controversy over paper money.  A severe post-war depression had ensued as the ex-colonies suffered a cut-off of their traditional source of finished goods in Britain.  The lack of specie held back domestic industry from taking quick advantage of the new home market.  It also became the focal point of a nascent class struggle between debtors - who favored cheap paper money to pay their loans - and creditors - who wanted a strong currency that would preserve the value of the debts owed them.  In state after state, the paper money question -- and the related issue of imposts (taxes) -- became the main political conflict.  The conflict over paper money contributed considerably to the premature abandonment of the confederation.

    In theory, the Articles empowered the Congress to requisition funds from the states to pay the debt represented by its paper securities.  The states, however, often fell in arrears.  Congress lacked its own taxing authority or the power to enforce its requests on the states.  This complicated efforts to retire the debt as quickly as its holders wished.  The conflict between debtors and creditors, exacerbated by the post-war recession, erupted in bitter state politicking and rioting.  To some, the violence (especially Shay’s Rebellion) appeared to threaten the ability of Congress to adequately preserve domestic peace and stability.  Thus the debt problem highlighted an apparent twin flaw in the Articles, Congress’ lack of taxing and enforcement authority.

    The United States faced apparent danger on the international front as well.  The overseas representatives of Congress felt that foreign governments were not according the new nation sufficient weight.  Spain threatened to close outlets for western trade and seemed poised to cut off any of the western territories of the states that became disaffected.  England still held on to several western forts in lieu of payment of money owed English businessmen. These factors contributed to the fear on the part of some that the confederation might prove too weak to protect itself from foreign aggression and intrigue.

    In spite of the confederation’s apparent shortcomings, often exaggerated by its opponents, it did not in fact perform all that poorly.  Given what we now know of the difficulties of developing nations and their foreign debt, the Congress and the states retired the war debt rather quickly.  The treasury received an average of $600,000 a year from the states.  Although the debt incurred during the war totaled about $200 million, by 1783 total domestic debt fell to about $34 to $42 million.  By 1787, the debt was essentially liquidated.  Throughout the 1780’s, the states and the Congress paid off their debts in whatever way proved acceptable given the shifts in relative political strength between debtors and creditors.  Without doubt, the general economic recovery during the decade contributed to the progress in dealing with the debt.  By mid-decade, domestic industry had expanded to fill the gap left by the British.  Foreign trade also increased greatly, surpassing pre-War levels. If the confederation could not take full credit for this recovery, neither did it deter it.

    In the field of international relations, in spite of the various threats, the confederation delivered the United States intact to the government of 1789.  The fear of intrigue and war remained a factor even after 1789, witness Aaron Burr and his “western empire” and the sacking of Washington during the War of 1812.  Indeed, the confederation achieved its greatest success in regard to settling the western lands.  To settle the question of western cession by the eastern states, Congress passed the Northwest Ordinances (during 1784-87).  These acts provided for an orderly process of admitting new and equally sovereign states into the confederation and became, in fact, the basis upon which future states were added to the union.

    Undeniably, there were flaws in the Articles.  Chief were the inability of Congress to assure itself of a reliable income and to regulate foreign trade.  Congress and the states recognized these problems and attempted before 1787 to address them.  These attempts failed because of a third problem in the Articles, the need for unanimous approval of the states to amend them.  But it is far from proven that these problems could not have been dealt with within the confederal framework.  That ultimately forces conspired to move outside the Articles of Confederation should not deter us from examining what the amended Articles might have looked like. 

Saturday, October 29, 2011

Taking Back The Articles of Confederation - Part 1


The Articles

The government of the Articles of Confederation fought and won the American Revolution. The confederation lasted 13 years, until 1789, the year that George Washington became the first president under the new constitution. The Articles established a confederal legal order, a national system of exchange and communication, and a permanent congress of the states to oversee common affairs. Yet Americans are largely ignorant of the existence of this distinctly American government founded as the political union of individual sovereign states.

The Articles were founded on the principle of state sovereignty and contained a pact of “perpetual union between the States.”  Each state retained “its sovereignty, freedom, and independence” except in those areas in which power was “expressly delegated” to Congress. (Preamble; Art. 2) The need to provide for a “common defense” motivated the states to enter “a firm league of friendship with each other.” (Art. 3) To promote this friendship and to further intercourse between the states, Article 4 extended to the citizens of each state the “privileges and immunities” of citizenship of whatever state to which they might travel. It also guaranteed free exit and entrance across state borders and forbade duties, taxes or restrictions on out-of-staters that a state government did not also impose on its own citizens. Article 4 called for extradition upon request and recognition by each state of the “records, acts and judicial proceedings” of the others.

A congress made up of delegates appointed by the state legislatures was established for “the more convenient management of the general interests of the united states.” The delegates could be recalled at any time. Although a state could send from two to seven delegates, each state had only one vote in congress. (Art. 5, 10 and 11)

The Articles forbade any state from pursuing its own foreign policy and regulated the terms under which the states could enter pacts with each other. Although the congress served as a court of appeal in conflicts between the states, the Articles protected the control of each state over its militia (reserving to Congress the authority to appoint general officers). (Art. 6, 7 and 9)

The Articles expressly denied congress the power to tax. But all defense expenses were to be paid out of a common treasury filled through requisitions levied on the states “in proportion to the value of all land within each state.” The states themselves would decide how to raise the money within the period allowed by congress. (Art. 8 and 11) Congress, however, received the authority to regulate the value of coin – national or state – as well as to fix the standard of weights and measures. Congress could also organize a postal system, charging fees to offset operating costs.

The Articles established, in short, a confederation, a non-sovereign union of sovereign states. That this first government of the United States should be confederal should not be surprising. Under British rule, the colonies had been politically independent of each other. When the tie with Britain ended, it left the colonies as a collection of independent, sovereign states with no formal political ties between them. During the Revolution, these newly independent polities saw a need for cooperation. They therefore sought a practical balance between independence and cooperation: they would work together to the extent it would benefit all of them, but no further.

In spite of the limited nature of this first effort at national cooperation, the motive of reciprocal advantage propelled the states far beyond a mere mutual-defense treaty. The Articles provided for a common, yet confederal, legal framework. The laws and legal proceedings of each state were mutually recognized. The Articles protected the freedom to travel and to do business across state lines. Such activities were subject to no more regulation that a state imposed on its own citizens. The Articles provided for a national mail system, a national system of weights and measures and a national currency in order to facilitate interstate communication between persons and traffic in ideas and goods. By these measures, the Articles assured the necessary minimal ground for the development of a national community.

The states further agreed to establish a legislative body to pursue the “convenient management” of their collective interest. The Congress became the vehicle to determine this “national” interest. Insofar as the national interest required coordinated action, Congress itself acted as the executive organ of government. This combined legislative and executive function of Congress was partly a reaction to the colonial experience of arbitrary executives. States such as Georgia and Pennsylvania went so far as to establish unicameral legislatures to avoid an “aristocratic” upper house. The newly constituted Continental Congress followed this same tradition, serving as the unicameral common legislature of the states and without a separate executive.

As a confederal assemby, the Congress could not escape the fact that the states held ultimate power. Given the responsibility of working toward the national interest, the Congress remained a body in which state met state to decide what that interest might be and how to realize it. A separate executive branch would have implied an authority greater than that of the states themselves. It was Congress, as the institutionalized committee of the states, that conducted the war for independence, and foreign policy in general, and directed whatever other joint undertakings the states found convenient.

The confederal framework established by the Articles went a long way towards providing the means by which the thirteen sovereign states could achieve a working social, economic and political unity (and went beyond the degree of common institutions found in today's European Union). The confederation made possible a degree of cooperation and exchange that could have allowed the already culturally bound states to build a nation without necessarily having to construct a nation-state. Certainly, this revolutionary course of development needed time to be tested and to be modified in light of experience. The forces of reaction gave the experiment just 13 years.

Friday, October 28, 2011

Taking Back The Articles of Confederation - Introduction

In the summer of 1787, a group of counter-revolutionaries met in Philadelphia, Pennsylvania. They were asked by the Congress of the United States of America to gather and work on necessary amendments to the existing constitution. Instead they decided to throw the old document away and write a new one. The new document minimized the role of the people, divided the government into parts so that it would make majority rule difficult and moved the center of power beyond the reach of the common man. These counter-revolutionaries became know as America's “Founding Fathers” and the document they wrote the US Constitution.

Over the last two hundred years, the original government of the United States under the Articles of Confederation has became lost to history. Yet – as has become clear to many in the Occupy movements and the Tea Party – the current government of the United States is not serving the majority of the American people but rather a small elite who use it for private gain and political power. We need to recover awareness of the thirteen years during which the United States were governed under the Articles of Confederation. These were years of great accomplishment, the establishment of an independent North America and the beginning of a new experiment in confederal government where power remain close to where people lived.

There exists a profound neglect of this beginning. One might assume there would be interest in these years, in which the government of the United States was fundamentally different from the government that we have come to know. But the confederal period has never been fully assimilated into the great American myth of the “Founding.” Nor has the model of confederal government expressed in the Articles gotten much respect from those who have commented on the period. The confederation and the Articles either have been ignored or have been dismissed as a thankfully short-lived detour. This neglect and disregard is not justified. Indeed, the neglect of the Articles helps explain both the failure of conservative critics of the present American regime to go beyond mere criticism of “Washington’ and “big government” and the failure of its defenders to offer meaningful reforms of their own.

Reconsideration of the Articles of Confederation is an indispensable step in educating the impulse toward less government that has become one of the dominant strains of American politics. Reconsidering the Articles can tell us something not only about how confederal government might work but also refocus attention on the advantages for democracy of renewed governance at state and local levels. The Articles are crucial in this regard in that they stress not “less government” as much as “more politics.” And they are as deeply rooted in the American political tradition as the Constitution of 1787.

In upcoming installments I will try to cast some light on the Articles. This does not imply that a simple return to 1786 would resolve our 21st century problems. But it seems clear that our current government is too big and too much in the hands of the 1% to allow us to meet the challenges we face in the globalized world of the new century while also preserving the justice, progress and fairness by which America has prospered. Reminding ourselves of the beginning may help us find a way to begin again and perhaps prepare the way for a new constitutional convention and a new way to do our politics.

Note: “Confederal” denotes a political system in which the member states, not a central government, are sovereign. A “federal” system is one in which ultimate sovereign authority is exercised by the central government and not by the individual member states. The European Union is a confederal system while the government of the United States is now a federal system. The Articles refers to the union of states as a “confederacy.”

Tuesday, October 18, 2011

A Riff on Modern Capitalism

During most of human evolution, we lived by hunting and gathering.  Our daily activities were focused almost entirely on getting enough food to survive today and tomorrow.  Around 10 thousand years ago, we started replacing hunting and gathering with agriculture and animal husbandry.  Along the way, we no doubt began engaging in trading and bartering.  But the pursuit of today's bread and meat remained the central part of our daily existence.  By now, in industrial and post-industrial society, the actual production of food has become an activity which most people in developed - and increasingly in developing -  societies do not directly participate.  Instead, we earn our daily bread - and much else we now find essential for "modern life" - through buying and selling, earning and spending.

Production is now just one small part of the process of sustaining human life and society in the modern world.  People must buy and must be encouraged to buy.  Advertising is essential in this process so we get bombarded constantly with it.  All of life can seem built around being incessantly offered opportunities to spend our money.  If people stop buying - perhaps because they cannot earn - then selling becomes difficult, production may falter and more people end up not earning.

As production becomes more remote from the actual consumption processes - buying/selling, earning/spending - that feed us, space has grown for some to profit mightily from satisfying and creating needs.  This is not always bad.  The Internet and iDevices vastly open space for human interaction and productivity.  But the space for profit has become quite big and indeed can be thought of as a kind of petri dish for growth of a "tumor" - the mythical "job creator" - in the middle of the human enterprise.

The problem is how to even conceptualize a way of organizing our society around some other way of life.  We can't really all return to hunting and gathering.  Making and trading also cannot sustain our seven billion.  For each according to his needs and from each according to her ability would rely even more on an "invisible hand" than our current capitalist system as no mere human hand could sort out all our needs and capabilities. 

For now there seems no good answer other than trying to reduce the size of the tumor.