No Equivalency

In the aftermath of January 6, most Americans have condemned the violence perpetrated by the insurrectionists in our nation’s capital. Some 57% even blame Trump. But many white Americans seem to feel uneasy about taking a stand against seditious violence by white extremists without also throwing in the violence we saw last year in the events surrounding Black Lives Matter protests and during Trump’s 2017 inauguration. So these conflicted whites must add that they oppose all violence to achieve political ends.

Now, there was violence during the Trump inaugural, in the aftermath of police killings of unarmed Blacks and during the events prompted by Trump’s waving a bible in front of St. John's Episcopal Church on June 1, 2020. Some of the worst was committed by white anti-fascists. The violence during the mostly peaceful protests of police behavior – especially burning down a Minneapolis police station – served no useful purpose and hurt communities that still deserve security. (Two of the four indicted in August for the Minneapolis incident are white.) But the rage expressed by the Black Lives Matter protests must be understood as the pent up reaction to white violence directed at Blacks going back to the days of lynching and often perpetrated or condoned by public officials and police. One can say violence out of even righteous rage is wrong. But it is not in the same category as what happened last week.

There is no equivalency – moral or legal – between any recent past incidents of protest violence and that carried out at the request of the President of the United States against the US Congress. Just saying this should make it clear. After railing against “criminals” including members of Congress, other Republicans, the press and social media that block his dog-whistle tweets – and threatening the Vice President to “do the right thing” – the President of the United States sent white thugs, extremists and fanatics to intimidate the US Congress through what Rudy Giuliani had just called a “trial by combat.”  And the white crowd that invaded the Capital targeted the very government that provides them, more than others, their race privilege and economic support.  

Yes, political violence in a democracy is always wrong. But there is no way that what happened on January 6 is anything less than treason and the attempted overthrow of the US Constitution. That is in a class by itself and needs to be understood as such without the white caveats.

Time to Be Progressive

It's possible to understand both of our two major political parties as having led America into a crisis. The Republican Party – in control of the US federal government and many states and in the hands of ideological and religious extremists – has been captured by an immoral egotist with no capacity for governing. In pursuit of elite interests and “conservative values,” Republicans have launched an assault on everything good in how our government has come to serve the common welfare since the days of Teddy and Franklin Roosevelt.

Democrats have not been on the playing field. They threw away the 2016 election by passing the presidential nomination through a politically correct form of primogeniture. The candidate threw it away through own goals and writing off voters in certain groups and states. Lacking any coherent vision to address the economic and social effects of globalization, the Democratic Party instead played to niche politics and appears to have little to offer beyond waiting for Trump to crash and the Republicans to burn.

Joe Biden does have a heart and could oversee cleaning up the mess the Republicans leave behind. But there must be a cohesive progressive agenda to go beyond that. Bernie Sanders and Elizabeth Warren understood that presenting voters with one could begin the process of putting the country on the right path again. A progressive agenda must begin with embracing the progressive income tax. Government needs money to serve the common good. Our tax system must be made more fair and taxes sufficient to meet our needs. (The Republicans have sought to subordinate this to cutting spending and a regressive taxing system favoring the owners of capital.) It need not be confiscatory but should treat the fruits of labor and capital equally with progressively higher tax rates on individual and corporate income no matter where it comes from and with very limited exemptions.

With adequate funding, the federal government can attend to the chief challenges facing American society in the 21st Century: healthcare, jobs, inequality and education.

Healthcare should be treated as a basic right as it is in other advanced Western societies. It need not be done through a government entity but perhaps with needs-based expansion of Medicare, a non-profit public option and/or payments to purchase insurance on open markets.

In the 21st Century, technology and globalization have conspired to reduce the need for human labor. There simply may not be enough good paying jobs for everyone. A reduction in the work week from 40 to 32 hours plus an increase in the minimum wage may help in opening job opportunities to a greater number. Federal funding to pay for some of the increase in the minimum wage could help reduce the burden on small businesses. Insofar as training will help prepare workers for new roles, government needs to fund that as well.

Inequality undercuts democratic community through making life for many nasty, brutish and short. The federal government should ensure some minimum income for those unable to work and those for whom jobs do not pay enough to rise decently above poverty.

Federal funds should support quality, free public education by focusing on providing modern facilities and adequately paid teachers and staff for all local public school systems. Federal oversight of local schools should be kept to the minimum required to ensure equal access.

Some elements of a progressive agenda need not require additional funding:

Money’s role in politics needs to be removed through campaign financing reform. A national commission on redistricting should oversee the drawing of congressional districts. Each vote should count equally.

A pathway to citizenship should be created for those now in the US “illegally.” A cross border agreement should be made with Mexico (and possibly with the Central American countries) so seasonal workers may go back and forth legally.

The role of contractors and lobbyists in the budgeting process – especially as concerns the military – should be subject to tight limitations.

The Democratic Party needs to begin talking to this agenda in the next three months and not only focusing on Trump’s disqualifications. Waiting for the Republicans to march lemming-like over their cliff might still not be enough and would nevertheless leave the country without a clear direction forward. Biden appears to be getting this.

What Needs To Be Done

Let us put aside for the moment the fear that Joe Biden’s lead against Trump in the polls is bad because it seems all too reminiscent of Hillary’s last time. Let us also assume that that Republican defeat in November is so complete that the Democrats win both houses. Let us then consider what the agenda should be for a new Biden Administration in 2021.

The first challenge facing President Biden and the Democratic Party will be to begin the arduous process of undoing the damage Trump and the Republicans have done. This means first of all, of course, leading the country in the effort to put the corona virus behind us and refunding state and local governments and health institutions. But also, reviving rule of law and the administration of equal justice, undoing the dismantling of environmental protections, ending the war on immigrants, reimposing federal oversight of local police performance, aiding states to simplify and protect their voting systems, reestablishing our relations with friends and allies abroad and countering Russian, Chinese and other actors waging cyberwar upon us. These reflect simply the requirement to reverse the erosion of governance and national interest inflicted by Trump and his administration but will nevertheless take great effort and concentration.

But the real challenge will be even harder because it will require going beyond fixing what Trump has broken to fixing America itself as the damage predates him. Indeed, Trump is a symptom of the two fundamental and related problems that afflict us: gross and growing economic inequality and partisan tribalism. Economic inequality reinforces both racism and ultra-nationalism and exacerbates racial inequality. Partisan tribalism has made it near impossible to extract rational political debate and responses to the problems we face from our government.

There is no way to tackle economic inequality without re-conceptualizing how we do capitalism. The United States is as near as one can imagine to a completely laissez faire system, in which not only does the market rule in the economic realm but in politics as well. Both parties are fueled by loose money and have long accepted the results of the market, its up and downs, its winners and losers. The Republicans seek the to protect the gains of the winners and ensure that the downturns don’t lead to raised taxes on the rich or efforts to place limits on the way business is done. The Democrats – to give them their credit – have sought to provide and protect minimum social welfare and have begun to do the same with health care. But they too accept market mechanisms as a given.

It is time to place limits on markets, allow them to operate in some areas, limit how they affect others and ensure that their results work for the majority and not only the few. The goal must be to greatly reduce economic inequality and provide basic necessities – including health care – for all as needed.

Partisan tribalism goes back to the very founding of our republic. But the degree to which it has in the last decades overwhelmed the very ability to actually govern is without precedent. Bill Clinton’s effort in the 1990s to take the Democrats towards a more market friendly approach was met with worried warfare by Newt Gingrich and the Republicans. If the Democrats tacked right, the Republicans would go even further in that direction. Since then, they have waged class war in favor of the 1% and against the middle class and the poor by cynically seeking to enlist the latter into an assault on the very government that could protect them. The policies pursued by the Republicans lowered taxes on the rich, cut government services for the non-elite as much as possible and covered everything in the rhetoric of patriotism and charges that the other side were socialists. The Democrats seemed obvious to the possibility of representing the 99% (with Hillary actually calling them the “deplorables”). The Democrats therefore implicitly eschewed the class approach to the political war waged against them instead sinking into a morass of contending internal constituencies each seeking to tear their own piece of flesh from the party and its candidates. Bernie Sanders – not surprisingly an independent – understood this dynamic and sought to bring the party to its natural base. The Democrats twice refused. (Whether or not Sanders was too “socialist” to be elected leaves open the question of whether Elizabeth Warren was overlooked because she was too much a woman.)

Trump may bring the Republicans to their knees. But this will not by itself end the tribalism. Indeed, it seems time for the Democrats to go on the offensive. Clean up Trump’s mess, begin undoing economic and racial inequality, and figure out what kind of country America needs to be to face the foreign, domestic and environment challenges the rest of the 21^st Century will bring. Yes, elect Biden and then get on with it!

The 2016 Election

It's over and that is good.  The choice was not the best and either Joe Biden or Bernie Sanders might have done better than Hillary.  She carried self-inflicted wounds and the weight of being the first serious woman candidate in a country where lots of white men are still challenged by that.  (Now watch for Elizabeth.)

However, it is also clear that yesterday the global reaction against globalization – which has benefited the rich more than the bottom – came to the US with the election of Trump as President.  Not just white men felt left behind by what seems an elite project to enrich themselves at the expense of the rest.  But if the Republican conservative fundamentalists fill Trump's Administration and have their way, our country and the world will continue coming apart and there will be many losers.  Watch for encouragement of foreign extremists (and Putin) as well as chaos in Syria, Iraq and Afghanistan if the US hand is removed or rejected.  Watch for Republicans ruining the economy again with more trickle-down.  Watch for those people feeling empowered now to do nasty things to others not like them (including some who may get cabinet jobs.)  Things all around could get dangerous.  But being an optimist, one can hope that Trump will surprise in some good ways.  Perhaps centrist Congressional Republicans, Democrats in the Senate and the former Democrat version of Trump (he was one a few years back) will save us from the excesses of the campaign Trump.  Trump's victory comments were at least more presidential.  

Boy, do we ever need Thanksgiving and Christmas.

Changing the US Constitution: Some Suggestions

Wrote late last year about the Articles of Confederation and the possibility of working through the states to call a constitutional convention according to Article 5. This would mean seeking and supporting candidates for state legislatures whose sole purpose would be to have their state call on Congress to call such a convention – an “Occupy the Constitution” movement to allow us to assemble, debate and decide on draft amendments while enjoying our Tea. It's only fair, therefore, for me to outline a few of the ways I think we might use the amendment process to change the way our government works and make it more responsive to the majority.

Simplicity in representative government may be best – a one-house Congress elected for four years choosing a Prime Minister with a ceremonial President. Whatever party wins the majority gets to implement the policies it was democratically chosen to enact. But the USA may be too big and complex to give so much power to any one institution. The Founding Fathers may have been on to something when they provided for checks-and-balances. For checks and balances, I would not touch the Supreme Court much. But it might also do to re-invigorate the role of the states both to decentralize power and to provide some degree of check-and-balance at the federal level. Here's my suggestions:

• Increase the size of the House of Representatives to allow for greater and more diverse membership and points of view. Article One, Section 2 says the number of representatives “shall not exceed one for every thirty Thousand.” Congress changed this by law in the 1920s to fix the number at 435. One for every 30,000 would now mean some 10,000 representatives. That seems much. But why not 1000?
• Elect the House for four year terms so its members can do something other than campaign all the time.
• Allow the House to choose the Prime Minister. He/she would be head of government, commander-in-chief and choose the cabinet and senior government officials (including ambassadors), assuming the powers contained in Section 2 of Article 2 without the need to seek advice and consent.
• The House would originate all bills and approve all treaties, assuming all the functions and limitations contained in Sections 7, 8 and 9 of Article 1.
• No commitment of US troops abroad for any time and any purpose would be possible without a majority vote in the House specifying the duration and terms.
• Repeal the 17^th Amendment on popular election of the Senate. Make senators appointed by state legislatures to two year terms. Senators would represent the States at the federal level.
• The Senate would have the authority by majority vote to reject laws and treaties passed by the House. The House could overcome the veto by a 60% vote. (We want to have checks and balances without completely tying the hands of the majority.)
• Members of the Supreme Court would be nominated by the Prime Minister and approved by majority vote of the Senate to serve single terms of 15 or 20 years.
• The President would be chosen by the House and be confined to being the ceremonial head of state. (Or we could abolish the office altogether.)
• Congressional campaign funding would be limited to public sources – money collected by the national treasury and doled out equally to candidates gaining sufficient support through local petitions – and individual contributions limited to some modest amount, say $200.

It might be good as well to take a hard look at the proliferation of government departments. We might grandfather State, Treasury and War – the first created – as well as Justice. But some of the others may be doing things better left to the states or society?

Taking Back The Articles of Confederation - Concluding Reflections

Introduction    Part 1    Part 2    Part 3    Part 4    Part 5

   The victory of the Founding Fathers in 1787 put the Articles of Confederation into the dustbin of American history.  But the debate between anti-federalists and federalists never entirely disappeared.  A fundamental difference in political vision has continued to run through the American political tradition like twin rivers.  The source of one river is the impulse, typical of Americans, to rise above local and individual differences to grasp the elements of a national, even global, commonality.  A rich and powerful mass democracy with universalistic pretensions has been built along this river.

   The source of the other river is the impulse, equally typical, to do it ourselves, to keep it small.  Upon this river have floated the various proposals and efforts over the years to reduce or limit the size and powers of the federal government.  Politics in America has often been the attempt to sail upon both rivers at once.  Those on opposing sides have had various labels:  Federalists and Anti-Federalists, unionists and states-righters, liberals and conservatives and now Occupy and Tea Party.

    Since the Articles were cast aside, the federalists have generally been ascendant. Those who have sought to advocate states rights or who have fought to preserve state powers against encroachment by the federal government have been handicapped.   The Articles were judged by its opponents to have failed.  Memory of the 13 years of confederal government faded.  This is not to say that the idea of state sovereignty has not returned at times to haunt American politics.  The southern Confederate States of America, in its mixture of states rights and an unholy effort to maintain slavery, was the final nail in the coffin not only of state nullification but of an historical consciousness of what was lost with the victory of the Federalists.

    What has been lost can be seen most closely in the failure of government in the current United States to serve the majority, the 99%.  One could say that this failure was inevitable in the age of nation-states, superpowers and globalization.  Governing a large modern nation in a world of fierce ideological, political and economic competition must entail enormous bureaucracies and incomprehensibly large budgets.  In our case, the attempt to guarantee the “pursuit of happiness” of all citizens - as much a necessary requirement of centralized, representative government as the gladiatorial games were for Imperial Rome - requires great effort and considerable resources and organization.  It gives great scope to the power of money.  

   Yet the voices raised against “big government” and "big business" express true insights.  The role of the average citizen in government has dwindled to the vanishing point while that of big money has come to predominate.  In the 19th and 20th centuries, Americans experienced the full range of challenges -- collective and personal -- associated with the growth of modern industrial society.  These difficulties included wars and cyclical economic downturns.  The growth of the central government in response to these challenges – especially during the Civil War and the Great Depression -- was dictated, at least in part, by practical necessity.  But the Constitution gave the government a mandate to provide for the “general welfare” and “common defense.”  It armed Congress with all “necessary and proper” power for doing so and vested in the president whatever "executive power” might be necessary.  With each major crisis, the focus shifted to what “government” could do to resolve the situation and, thus, from local efforts to the central government.  Along with the “welfare state,” the seeming imperatives of economic development made the government in Washington the ultimate provider  The Cold War, as well as the “hot” ones, levered the presidency into what can fairly be described as an imperial throne.  Meanwhile, as government receded from the people, it fell more and more into the hands of those with the cash to fund the politicians and manipulate the bureaucracy to their own ends. 

    In 1787, America reached a fork in the road.  It could have chosen to stay on the course it was marking out for the first time - confederal democracy - or it could return to the well-trodden path of centralized government.  Perhaps being “too young to know what we are fit for”, we chose the old road, and that has made all the difference.

    There are, however, two features of confederal democracy that might lead one to see in it a workable model for self-government.  First, by leaving decision making in the hands of those most directly affected, confederal democracy provides the citizens of the relevant community a public space in which to confront each other and work out jointly what is to be done.  They enjoy what Arendt called the pleasures and benefits of public life.  Tempered by the experience of mutual recognition and cooperation between citizens in the process of self-government, local government can become, as it was for the Greeks, an arena for collectively seeking the good life.  Politics in confederal democracy therefore would be vigorous and complex and would mirror the full range of interests, values and tastes in the community.

   Second, by leaving primary responsibility for living the good life where it most belongs, with those most immediately affected by the results of collective decisions, confederal democracy leaves less space for others to operate in the shadows.  Power flows not from beyond but from below.  Problems are solved at the level of government at which all affected can participate - town, county, state, regional, national - but no higher.  Citizens face each other directly in full transparency to solve their common problems and to resolve their differences.  A confederal polity requires citizen initiative.  Confederal democracy - built on active citizen participation in their polis - is the unrealized potential of the American tradition of local self-government.

    Certainly, the need to guarantee social justice and political equality amidst the strains of modern society assures that even a confederal central government would be an important political actor.  But perhaps the load might be more evenly placed, resting more directly where in a democracy it should, on the people.  However, the road chosen in 1787 followed the premise of maintaining government as far from the people as the new notions of popular sovereignty allowed.  Under the shocks of industrialization and war, Washington came to monopolize political space and government became someone else’s concern: citizens became subjects.

   The result is ironic.  The fate of over 300 million Americans - and essentially the entire globe that we have come to dominate - rests with a mere handful of people often far removed from the results of their decisions.  The Constitution that took the place of the Articles of Confederation set up a powerful central government and left we the people with no place else to turn.  But the call to resurrect the vision of that other, more democratic America still echoes.  Those who hear this call should ensure that they go back to the source to be sure they understand what they are hearing. 

Taking Back The Articles of Confederation - Part 5

Introduction    Part 1    Part 2     Part 3    Part 4

Confederation, Community and Bodies Politic

   The anti-federalists saw the question of power from the bottom-up.  The Constitution would establish a government with too much power, too far away from the people.  They feared the return of aristocracy.  To set up one government in place of thirteen, and to endow that government with the law, the purse and the sword, would be to destroy democracy.  No matter the supposed guarantees, the states would eventually be reduced to the administrative agents of the central government.  Without the intermediation of the states, the power of the central government could be brought to bear directly on the individual.

   The anti-federalists therefore opposed establishing a “great” power.  Instead, they favored granting power in small pieces, close to what they held to be the only reliable check, the people.  In place of one preponderant national government, they wanted to preserve the division of government among the states.  The state legislatures, more accessible to the citizenry, more closely tied to local politics, and with membership in the hundreds, could better reproduce the full variety of local interests and opinion than could a handful of representatives in a national legislature.

   Those who supported the Articles tended to see the representative in the legislature as a delegate (or ambassador) - as someone bound to vote as his constituents would if they could be there - rather than as a trustee - who would be free to vote according to his own judgement.  The delegate model could not work in a national parliament because of the great size of the country and the correspondingly greater number of people each legislator would represent.

   The national congress envisioned by the federalists would not represent the views of the citizens but pass them through a chosen few who would end up doing whatever was to their own advantage.  The anti-federalist view of representation as a simple transmission of the wishes of constituents fitted with their reliance on state and local politics, where interests are more immediate, communication more direct and government more subject to majorities.

   The Articles were based upon the assumption that people live in communities that mean something to them and reflect what they hold in common.  They supposed, in other words, that the natural community of man is not a mass of competing individuals but real local groupings based upon shared activities and characteristics.  Such groupings were not abstractions but were well within the reach of each person, where he lived his everyday life in his town, village, city and region. 

   In building a national government based upon sovereign entities within the traditional sphere of life of their people, the Articles kept government from becoming a Leviathan confronting individuals as something above and beyond them.  Real politics took place at the local level.  What mattered, happened there, where people could see it and directly participate in the decisions affecting them.  If democracy works best when people actively participate in government, then keeping government as close to them as possible to facilitate participation would assist the development of democracy.

   One may argue that confederal government is less “efficient” than unitary government.  Under even the amended Articles, if a majority of the states resisted a particular requisition or other action proposed in Congress, nothing would happen.  If a majority of states agreed and complied with a congressional decision but a minority did not, there would ultimately be nothing beyond moral suasion to enforce compliance by the holdouts.  Thus an action that many might judge rational and necessary might fail to be adopted.  It might also be that a majority (or minority, for that matter) might desire a particular course of action with considerable intensity and feel corresponding frustration on being unable to gain collective agreement or compliance. 

   But in practice, confederal government may be, in its own way, more efficient by allowing a greater range of political spaces.  Based on the premise that the expression of self-interest is unavoidable, the confederal government embodied in the amended Articles would have allowed for cooperation at various points along a continuum of mutual commitment and judgement of interest.  Finding the right node for achieving consensus takes its place along side intensity of interest in resolving political issues.  All states might agree and actively participate in joint national-level decisions.  Or, a majority of states might decide to act anyway, either through bearing the costs of collective action unequally - i.e. by themselves - or by acting as a subgroup outside the mechanism of the national congress.  A minority might well decide to do the latter as well.  Politics would no doubt be dense, as states jostled for both advantage and, at least occasionally, to avoid being left out.  But in a flexible and fluid situation where there was more than “one game in town,” things that needed to get done would mostly likely get done and lone holdouts or interstate differences would not necessarily block all further action.  

   The Constitution of 1787 sought to ensure that the body politic would speak only when a sufficient number and diversity of interests had sufficiently checked-and-balanced each other to be able to say one thing.  As we now know quite well, this leaves the Leviathan either powerless or impelled by intensely interested minorities. 

   Confederation provides for many voices to be heard on many levels.  The Continental Congress was a forum for the states but the states could act outside that forum, in groups or singly.  The Articles also left entirely unregulated the political forms that might exist within states.  A confederal united states offered the possibility of a structure of multiple bodies politic.  Government or associations could exist at each level - local, state, regional, and national - to exercise authority on specific matters delegated to it from the level below.  This meant local approaches for local issues, regional for regional and national for national.  Local government, possessing the sovereignty of immediacy, would anchor a framework of legitimacy and decision-making built from the bottom up.

   In the continental-sized federal system that grew out of the Constitution of 1787, final authority - exercised in the name of the “people” - is far away from where the people actually live.  The government in Washington has understandably come to feel alien to many, who have been reduced to being political spectators assembled once every few years to cheer from the stands.   The states remain, but as political “backwaters” bypassed by the present constitution.

   Is it not, however, inevitable that as we become ever more immersed in the emerging global context, we will require more and more that government make sense of the resulting web of complexity?  And who will trust the government to do that if it seems more a part of the external environment rather than something that belongs to us?  And as the World Wide Web and economic globalization connects us in ever more complex ways, does a sovereign “central government” per se still play a necessary role?

Taking Back The Articles of Confederation - Part 4

Introduction   Part 1   Part 2   Part 3


The Federal Leviathan

   In the debate over what to do to go beyond the Articles, the issue, for confederalists and federalists alike, was power.  Both shared the belief that great power, concentrated in one place, is an open invitation to abuse.  However, the Federalists did not object to centralized power.  For them, a strong central power was a necessary element in holding together and directing a continental-sized nation.  In a large, powerful and wealthy society, preponderant force must exist as the basis for rule.  The Federalists sought only to check the powers of a strong executive with a strong parliament.   They proposed, in other words, to grant this great power to the center but divide it.

   The Federalists’ fundamental charge against the Articles was that they provided for a government both too weak and inefficient and too open to local majorities and interests.   It could be argued that even the confederation of the amended Articles would continue to depend on the voluntary compliance of its member states and thus remain fatally flawed.  Without the ability to enforce compliance on the states, the central government could not perform that one function necessary in a community of individual entities each seeking advantage, to enforce cooperation and contribution to the common good.

   Throughout the brief confederal period, some states failed to fulfill commitments to the central government and there were always inter-state and inter-regional rivalries.   Clearly, without the states’contribution and active participation, the confederation could not prosper.  The Articles, even if amended, would not have done away with this problem.  Indeed, the Constitution of 1787 did not do so.  The Civil War had to be fought, hundreds of thousands of Americans had to die, and the federal government had to settle by force-of-arms the question of where ultimate authority resided before the Constitution could be “perfected.”

   Seeking the common good is a classic political conundrum that has called forth various responses.  The most obvious, and the one perhaps most used, is the Hobbesian option, constituting a “Leviathan” which can force obedience.  Although not all supporters of the Constitution of 1787 were so motivated, the option for creating a strong central authority had great appeal to many of the Federalists and their supporters, and most clearly for Hamilton.
 
   According to the Federalists, the government of the Articles did not create a national polity that could manifest the broad interests of the people.  Rather, it represented the states.  Dividing America into localities, it allowed local majorities to hold sway.  Holding power in the states, these “local interests” – or “factions” – did not seek the public good but their own.  Thus, the Federalists argued that the confederation lacked not only efficiency but also representativeness.  The new government that the Federalists proposed would merge these many local majorities together into one polity where they would have to contend with each other on equal grounds, i.e., as minorities.  Through the several institutions of government, the public view could be “refined” and a national will -- stripped of factionalism -- could emerge.  The Constitution would, in effect, arrange the political machinery so that a “nation” would form around the polity.

   The Founders as much as hoped to create “America” as to supply it with a government.  In this sense they were indeed “nation builders.”  The confederation stood in the way of this intended act of creation.  That in some cases the local majorities that governed in the states used their power against their “betters” -- such as in the chronic confrontation between debtors and creditors -- further motivated some of the Federalists to look to establish a federal government out of the reach of these local majorities.
 
   The Constitution of 1787 was a document of predominantly nationalist, not democratic, sentiment.  It took the politically necessary tact of presenting in republican form the Hamiltonian vision of an imperial America.  The Constitution stripped the states of sovereignty and established an what was in effect an “elective monarchy” with a president/commander-in-chief – chosen by a collection of local notables called the Electoral Collage – and checked by a national parliament.  In establishing a separate executive branch, the Constitution also provided the new federation with a nascent bureaucracy.  

    Because the contemporary political reality was based upon the sovereignty of the thirteen states, the Federalists did not highlight the issue of the states’ relationship to the proposed federal government.  But the anti-federalists were aware of the potential in the new document.  The Constitution sought to submerge the states within the framework of a national government that largely dispensed with them as localized aggregators of political input or prime vehicles of political output.  It established a national government with broad undefined powers and with legal precedence in those areas in which it was given authority.  It provided for taxes raised independently of the states and gave the central government a standing army and control over the state militia.

   To the confederalists, the changes proposed by the Federalists did not seem to guarantee the continuance of the political preeminence of the states.  If their fears were often exaggerated, the subsequent shift of the political center of gravity to the central government has supported their fundamental concern.  The states have not completely disappeared, in large part because of the strong American tradition of local government and a concomitant fear of big government.  But the growth in the size and importance of the federation’s central government -- and the increased power within that government of the president -- have filled in the mere outline of electoral monarchy established by the Constitution.

   It was the “genius” of the Founding Fathers to move beyond the states to structure the basic political dynamic around the contention of “faction” writ large.  Implicit was the notion that the “natural” community of man was the mass of individuals competing in the “state of nature.”  In the face of this abstract “community”, the states added nothing and, indeed, got in the way.  As long as the central government followed its own rules, there would be nothing between it and the individual and little role for state governments.  It is not surprising that even some Federalists were alarmed enough by this prospect to push through the first ten amendments to the Constitution of 1787 even before it was adopted.   

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.

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. 

Taking Back The Articles of Confederation - Part 1

Introduction

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.

America is waiting for a message of some sort or another

Americans of all political persuasions apparently are disappointed with our dysfunctional government. We want most of what government does for us – even in health care – but it seems that the system is broken. It feels like our leaders, parties and the way our government works just may not be up to the challenges we face in this 21st Century. Yes, Washington seems sunk in partisan bickering and knee-jerk attacks on whoever tries to do anything. But the very mechanism – designed in the 18th Century and last updated 100 years ago – seems woefully incapable of helping us make and implement the decisions we need to survive and prosper in the bewilderingly complex world we now find ourselves in. The Senate has become an arena for power politics fueled by all the influence that money can buy. The federal government – and most of the states – are spending more money than we have. Fortunately, the Chinese have little choice but to hold our dollars for us. But the debt we have run up measures a collective addiction greater than the most pernicious drugs. The Presidency is enmeshed in a bureaucracy of vested interests – within the government and within the ruling party. We seem to have entered the age of permanent war in which only the professionals fight and die. The whole system has become the tail on the dog of the military-industrial complex that Dwight Eisenhower warned us about.

We need to update how we do business, bring the constitution into this millennium. Whether by constitutional convention or through amendments, we need to seize back the initiative. The Founding Fathers were great men for their time, we need great men and women now for our time. Change in America is usually incremental. Our political system's great strength is our reliance on stable and solid rules of the game. But we need change; we all recognize this. Some may fear it. Certainly some may worry about opening the Pandora's Box as widely as a constitutional convention might. But we really cannot go on this way much longer and still maintain our leadership in the world and offer our children and grandchildren a return to the American dream that we boomers have let slip from our grasp. We need the sort of grand national conversation that a convention would bring on. Being democrats, sharing a belief of government of the people, by the people and for the people, we should have nothing to fear but fear itself.

Perhaps our national dialogue can be channeled through serious consideration by the Congress and then through state ratification of amendments we might agree on? Or maybe the Tea Party has accurately measured the times and we need something from outside the existing structures. Article Five of the US Constitution provides the various alternatives.

What might we need to change? Perhaps a parliamentary system might be best. Parliamentary government is more agile, allowing majorities to rule yet quickly recallable. But we Americans do like our change in small steps. So a couple of more modest suggestions:

To improve the efficiency and representativeness of our national legislature.

- Increase the term of office for Representatives from two to four years so they can spend more time focusing on legislating rather than running. Stagger the terms so that every two years, half the House is up for election.

- Increase the representative and deliberative nature of the Senate. Change the distribution of the Senate seats so that no state can have more Senators than it has Representatives. Distribute the extra seats to states according to population with no state having more than three. This would mean that states would have 1-3 senators roughly distributed every ten years according to the latest census. All senate terms would be concurrent and for five years timed to be open the year following the census.

To improve the efficiency and representativeness of the administration of government.

- Increase the presidential term to six years while retaining the limit of two terms.

- Mandate constitutionally that the federal government operate on a two-year budget.

To build into government and law some regular process of review that includes popular consideration.

- Mandate that all Acts of Congress be reauthorized every 25 years either by a 3/5's vote in each house or failing such action, by national referendum.

- This would apply as well to all departments and agencies of the federal government not explicitly named in the Constitution.

Change is the order of life. We Americans have lived in a political system resistant to change. That is mostly good. But the time has come to dig up the roots, prune the tree and replant in soil we can grow on. Let's talk....