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.

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