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.

No comments: