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Toward 1987: A Dramatic Change
in Goals, 1785-1787
by Cornelius Bryant Kennedy
Although styled "The United States of America,"
the government established by the Articles of Confederation,
agreed loon July 9, 1778 by the delegates representing
the 13 newly independent and sovereign States, was little
more than a joint venture by the new sovereign States
for common purposes if they could agree on any matter.
The powers of government remained firmly lodged in the
legislatures of the 13 States.
The Articles expressly noted, in Article I, that it was
to be a "confederacy," in Article II that "each
state retains its sovereignty, freedom and independence,"
and in Article III that the "Said states hereby severally
enter into a firm league of friendship with each other,
for their common defense, security of their Liberties,
and their mutual and general welfare."
To implement this "firm league of friendship with
each other," the Articles provided that representatives
from the former colonies, now independent sovereign states,
were to meet together "in Congress" to act on
a variety of matters not relating to local self government
within the States. There was to be no executive arm and
the judicial function was limited to courts for the trial
of piracies and felonies committed on the high seas and
appeals "in all cases of captures." Any normally
executive functions which might be considered necessary
were to be performed by Congress, the legislative body,
which was authorized to appoint a committee, called "A
Committee of the States," consisting of one delegate
from each State, and "such other committees and civil
officers as may be necessary for manageing [sic] the general
affairs of the united states under their direction."
The Articles did provide, however, for reciprocity between
the different sovereign States. The free inhabitants of
each State were entitled to all privileges and immunities
of free citizens of the several States. The people of
each State, moreover, were to have the right of free ingress
and egress to and from any other State and the right to
enjoy all privileges of trade and commerce of another
State, subject to the same duties, impositions and restrictions
as the inhabitants of such State, but no such restriction
could prevent the removal of property imported into any
State, to any other State of which the owner was an inhabitant.
To emphasize the independent, sovereign status of each
State, the Articles provided that persons charged with
treason, felony or a high misdemeanor, and fugitives from
justice, could be extradited on the demand of the governor
of the State from which he had fled. Full faith and credit
would be given in each State to the records, acts and
judicial proceedings of the courts of every other State.
The representatives of each State were also protected.
Freedom of speech and debate in Congress could not be
impeached or questioned in any court or place outside
of Congress and the members of Congress were protected
in their persons from arrest or imprisonment during the
time of their going to and from and attending Congress,
except for treason, felony or breach of the peace.
Only on matters affecting the States jointly were there
restraints. With respect to foreign and military affairs,
no State could engage in war without the consent of the
United States, unless actually invaded by enemies, nor
could any State receive or send ambassadors to any other
king, prince or state, or lay duties or impost to interfere
with any stipulations and treaties entered into by the
United States in Congress assembled.
The Congress was to have the sole and exclusive power
to regulate the alloy and value of coin struck by the
authority of the United States or by the authority of
a State, and to fix the standard of weights and measures
throughout the United States. Congress also was to have
the sole right to regulate trade and manage affairs with
the Indians, to establish and regulate post offices, to
appoint all military officers and to make rules for and
direct the operations of the army and navy.
Each State was to have one voice in the Congress and,
with some important exceptions, questions were to be determined
by a majority vote. These exceptions notably included:
declarations of war; granting letters of marque and reprisal
in time of peace; treaties and alliances; coining of money
and regulating the value thereof; determining the funds
necessary for defense and welfare of the United States;
printing of currency; borrowing and appropriation of money;
the size of the naval and military forces; and, the appointment
of the commander in chief of the Army and Navy. The assent
of nine states was required in these matters.
Weak as the Articles of Confederation may appear to be
as an instrument of national union, there were good reasons
why they went no further. They were drafted in 1777, the
year after the thirteen colonies had dissolved their allegiance
to the English Crown and declared their status as free
and independent sovereign States. In each of the newly
sovereign States the people had just adopted constitutions
for the governance of their State. Their desire for self
government was forcefully and simply expressed by a soldier
who had been in the battle of Concord and Lexington, when
he was later interviewed by John Adams. When asked "What
was the matter, what did you mean going into the fight?"
he responded:
What we meant in going for those red-coats, was this:
We had always governed ourselves and always meant to.
They didn't mean we should.
After successfully fighting to preserve the broad right
of self government which they had enjoyed for over 150
years, the people of each State were not about to give
up the power to govern themselves to any other legislative
body.
Indeed, the people of the thirteen newly sovereign independent
states had every reason to fear oppression by a superior
legislative body. For a decade, from 1765- 1776, Parliament
had asserted the right to pass laws affecting the colonies,
and thereby had changed the broad right of local self
government which each colony had long enjoyed. First,
Parliament adopted the infamous Stamp Tax Act of 1765.
Then came the Townsend Acts by which Parliament asserted
increased governmental control over the colonies. Colonial
resistance to these acts caused the repeal of some, but
the duty on tea was not repealed. The Boston Tea Party
followed, and, in retaliation, Parliament passed a series
of statutes which became known as the Intolerable Acts.
The colonists asserted that, in adopting these acts, Parliament
was "stimulated by an inordinate passion for power,"
and they beseeched the king to redress their grievances
against Parliament. He did not.
Finally, on July 4, 1776, after their repeated appeals
to the king to protect their right of local self government
from invasion by Parliament went unheeded, the colonists
dissolved their tie of allegiance to the British Crown
by announcing their Declaration of Independence.
The Articles of Confederation, as they were drafted in
November, 1777, were designed by the new independent states
to prevent such an assertion of governmental power by
a super legislative body. The result, however, according
to George Washington, in July, 1780, was that: "Our
measures are not under the influence and direction of
one Council, but thirteen, each of which is actuated by
local views and politics."
With the end of the war in 1783, even the bond of defense
against a common enemy which had united the newly sovereign
States was no longer needed. Thus, free to return to their
homes and pursue the fruits of peace, and aggravated by
a reluctance on the part of the independent sovereign
States to pay for the costs of the common war which was
now over, there was an indifference by the people of the
States to the need for a stronger, rather than a weaker,
national union of the states. George Washington described
the problem and the inadequacies of the Articles of Confederation
to deal with it in a 1783 letter:
To suppose that the general concerns of this Country can
be directed by thirteen heads, or one head without competent
powers, is a solecism, the bad affects of which every
man who has had the practicle knowledge to judge from,
that I have, is fully convinced of; tho' none perhaps
has felt them in so forceful and distressing degree. The
People at large, and at a distance from the theatre of
action, who only know that the machine was kept in motion,
and that they are at least arrived at the first object
of their wishes, are satisfied with the event, without
investigating causes of the slow progress to it'. or the
expenses which have accrued, and which they have been
unwilling to pay--great part of which has arisen from
that want of energy in the Federal Constitution, which
I am complaining of, and which I wish to see given to
it by a Convention of the People, instead of hearing it
remarked that, as we have worked through in arduous contest
with the powers Congress already have (but which, by the
by'. have been gradually diminishing) why should they
be invested with more, . . . for Heaven's sake, who are
Congress? Are they not the creatures of the people'. amenable
to them for their conduct'. and dependent from day to
day on their breath? Where then can be the danger of giving
them such powers as are adequate to the great ends of
Government and to all the general purposes of the Confederation
(I repeat the word general, because I am no advocate for
their having to do with the particular policy of any State,
further than it concerns the Union at large).
Indeed, Washington felt so strongly about the urgency
of the matter that on June 8, 1783, he advised the Governors
of the States that:
There are four things, which, I humbly conceive, are essential
to the well-being, I may even venture to say, to the existence
of the United States, as an independent power. First.
An indissoluble union of the States under one Federal
head; secondly. A sacred regard to public justice; thirdly.
The adoption of a proper peace establishment; and, fourthly.
The prevalence of that specific and friendly disposition
among the people of the United States, which will induce
them to forget their local prejudices and policies; to
make those mutual concessions, which are requisite to
the general prosperity; and in some instances'. to sacrifice
their individual advantages to the interest of the community.
These are the pillars on which the glorious fabrick of
our independency and National character must be supported.
Washington was not alone in his view. John Jay of
New York wrote Gouverneur Morris of Pennsylvania in September,
1783:
I am perfectly convinced that no time is to be lost in raising
and maintaining a National spirit in America. Power to govern
the Confederacy'. as to all general purposes, should be
granted and exercised.
In September, 1783, Governor John Hancock made the
same point in a message to the Massachusetts legislature:
How to strengthen and improve the Union so as to render
it completely adequate, demands the immediate attention
of these States. Our very existence as a free nation is
suspended upon it.
Thomas Jefferson expressed the sentiment in a letter
to Madison in 1784:
I find the conviction growing steadily that nothing can
preserve our Confederacy unless the bond of union, their
common Council, be strengthened.
And in 1785, Jefferson wrote to Monroe:
The interests of the States ought to be made joint in every
possible instance, in order to cultivate the idea of our
being one Nation.
But, as Stephen Higginson, observed in a letter to
John Adams in December, 1785:
Experience and observation most clearly evince that in their
habits, manners, and commercial interests, the Southern
and Northern States arc not only very dissimilar, but in
many instances directly opposed. Happy for America would
it be if there was a greater coincidence of sentiment and
interest among them. Then we might expect those National
arrangments soon to take place which appear so essential
to our safety and happiness.
Thus, 1785 was, without doubt, a low point in the
movement for a National government. The advocates for a
stronger national union faced an apathetic audience. But
1786 was to be a quite different year. The differences between
the Northern and Southern States became charged with emotion.
A serious dispute arose in Congress over a proposal of the
Secretary of Foreign Affairs, John Jay, to abandon for a
time the right of the States to free navigation of the Mississippi
River. James Monroe, then a member of Congress, wrote to
Madison that:
It is manifest here that Jay and his party in Congress are
determined to pursue this business as far as possible, either
as the means of throwing the Western people and territory
without the government of the United States and keeping
the weight of population and government or dismembering
the government, itself, for the purpose of a separate Confederacy.
There were other fears, too, about population because
the South, with its rapidly growing population through the
importation of slaves, might soon be able to dominate the
other States.
Then, in September 1787, Shays Rebellion in Massachusetts
caused many with property interests, who might have otherwise
been indifferent, to become concerned about the tendency
of the legislatures of the sovereign States to pass "unwise"
laws. They began to see advantages in a National legislature.
As a result, the lack of general support for a national
government which was prevalent in 1785 changed in 1786 and
1787 to a generally felt need to consider a National government
as the solution to a variety of problems which were rapidly
growing in intensity.
When the delegates to the Constitutional Convention convened
in Philadelphia in the summer of 1787, the question, therefore,
for most of the delegates was not whether to create a stronger
national union, but how. The challenge was how to structure
the National union to protect the people of the States against
each other. Interestingly, one of the approaches most frequently
proposed during the Convention was to utilize the stature
and abilities of the National judiciary to act both as a
prior restraint on the national legislature and as an advisor
to the Executive. The delegates extensively debated whether
the traditional limited role for the judiciary, which had
been developed in the colonies during a century and one
half of broad self government, should be abandoned in favor
of judicial participation in the legislative and executive
functions. By contrast, they appeared to feel little need
to debate the role of the judiciary as to matter "of
a judiciary nature."
While none of the proposals to give the National judiciary
legislative and executive functions were adopted, it may
be that more attention should be paid to the impact of
these proposals both as a means of persuading the States
to send delegates to the Constitutional Convention and
in achieving agreement in 1787 upon a national constitution
which those delegates could transmit to Congress as that
"which appears to us the most advisable."
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