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The Defects of the Articles of Confederation, Part 8

by Edward Posted: Sunday, 9/18/2011

Defects_of_the_Articles_of_Confederation_8   <== PDF version

Dear readers:

In this eighth essay on the defects of the Articles of Confederation, the topic of a lack of a federal-state guarantee is discussed.  At issue is the ensuring that every state will maintain a republican form of government.  At the time of the Constitutional Convention, this problem was fresh in the minds of the founders due to the recent rebellion in Massachusetts led by Daniel Shays.  Because of its length, this essay is available only in pdf format.

Thanks,

EDD

 

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The Defects of the Articles of Confederation, Part 7

by Edward Posted: Sunday, 8/7/2011

Defects_of_the_Articles_of_Confederation_7   <== PDF version

A republican political system is one in which a large fraction of the general population exerts power indirectly through representatives of their choice.  The great attraction of a republic is that those representatives will, over the long run, reflect the views of a majority of the people, but at the same time, will tend to attenuate excessive demands by the public in times of difficulty or uncertainty. A republic is therefore somewhere in the center of the styles of political organization.  At one end are the forms in which power is concentrated in a few people.   Among these are: a) a dictatorship or absolute monarchy, in which one person has nearly all the power; b) a monarchy and hereditary nobility composed of a small but stable number of people; and c) ruling oligarchies, in which power is assumed by a small number of people who are not members of a permanent class.  At the other extreme is pure democracy, in which every eligible person has a direct voice in public affairs.

There are two main classes of systems that can be correctly called republics. In the first type, a purely federative style, the members of the federation are actually subordinate political divisions.  Each political subdivision chooses delegates to represent it at an upper political level.  In the second type, the general public chooses delegates to the top political level in their capacity as individuals.  A mixture of these prevailed under the Articles of Confederation: the eligible voting public, in their capacity as individuals, chose delegates to their state legislatures; those state legislators in turn chose delegates to Congress.  In Congress, each state had an equal vote.  At the state level then, it was of the second type of republic, but at the national level, was purely federative.   The provision is found in the first portion of Article V:

Article V.  For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

            No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

            Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

            In determining questions in the United States, in Congress assembled, each State shall have one vote.

It is clear that such a system is republican in the sense that the public chose representatives at the state level who in turn represented the state in Congress.  The people thus had an indirect choice in who represented them in Congress.  This is a satisfactory system, because ultimately the people are able to determine the makeup of Congress, although the process is one step removed from direct election.  But, if we recall the basic premise of a republic, that the views of a majority of the people will usually prevail, it is equally clear that a purely federative system such s the Articles can maintain this premise only if each state has approximately the same population. Such was not the case with the original thirteen states.  As Hamilton pointed out in The Federalist #22, seven states (Delaware, Georgia, Maryland, New Hampshire, New Jersey, Rhode Island, and South Carolina) could constitute a majority of votes in Congress, yet their combined population was not more than a third of the entire population.  On the face of it, there was no remedy for this problem other than the hope that these states would have such diverse interests that they would not combine together, thus requiring that some other combination of states vote one way or the other, and that by this means, opinions shared by of a majority of the population could be expressed.  It is true that these seven states rarely agreed, so little harm was done, but it was accidental, not by virtue of the system.

The Articles did contain one other provision that tended to mitigate this problem somewhat, at least at first glance.  It is found in the second-to-last paragraph of Article IX:

            The United States, in Congress assembled, shall never engage in war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same, nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled.

As seen here, concurrence of nine of the thirteen states was required to enact legislation on the important issues, such as treaties, coining money and issuing currency, and military expenditures.  In this way, the defect mentioned earlier was avoided: any nine states, including the seven whose population totaled only one-third, would likely constitute a majority of the people.  Secondly, history shows that requiring a supermajority on important issues having a great impact on the whole is an excellent idea.  But the wide diversity of state populations, the provincial outlook of many states, and the nine-of-thirteen rule sometimes led to a pernicious defect in the operation of the Articles when taken together.  For, if nine states were required to pass significant legislation, a combination of five states, whose combined population may total only 20% of the entire American population, could prevent necessary legislation from being passed – rule by the minority, contrary to the basic goal of a republic.  It was similar to, but not quite as bad as the Polish system, which required unanimity on every issue.

Two examples illustrate the problem.  In 1784, Congress was deprived of a quorum to do business from 11 Aug to 30 Nov because three New England states decided not to attend.  An even worse example was a vote taken on 23 Apr 1784 regarding the administration of western lands. The issue was whether slavery would be allowed in those territories.  Because not all the states were present this vote required 7 of 10 states to retain a previous resolution that prohibited slavery. New Jersey’s lone delegate refused to vote, and the delegation from North Carolina was divided.  So, the previous resolution was repealed by the votes of three states: Virginia, South Carolina, and Maryland; thus three states, with a combined population very much in the minority compared to the whole, was able to re-institute slavery in all the western territories.  Fortunately, this act of 1784 was superseded by the Northwest Ordinance of 13 Jul 1787.

The U. S. Constitution as proposed in 1787 preserved the excellent feature of a two-thirds requirement to confirm treaties in the Senate, which represented the states in their sovereign capacity.  But to avoid the main representative defect discussed here, most other legislation was to be decided by a simple majority in both branches of Congress: the House, which represents the people through their directly-elected representatives, and the Senate representing the states.  In this way, the sentiments of a majority of the people, through representation in the House, are always guaranteed a voice in every vote.  These provisions lay out a workable framework by cannot address the case wherein the interests of the members of Congress diverge from the interests of the people; there is no cure for that except elections.

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The Defects of the Articles of Confederation, Part 6

by Edward Posted: Saturday, 7/30/2011

Defects_of_the_Articles_of_Confederation_6  <== PDF version

Before reviewing how the Articles of Confederation operated with respect to territorial issues, it is first necessary to recall that the states retained land claims under the ancient colonial English charters.  The charters of Massachusetts and Connecticut extended ostensibly all the way to the western end of the continent.  The colony of New York had been established during the reign of Charles II; as a result, Massachusetts and Connecticut exempted that area, but continued to claim all the lands to the west at their respective latitudes.  Massachusetts also held the territory of what is now the state of Maine.  During the period from its establishment to the Revolution, the colony of New York gradually gained influence over the Iroquois Indians and the other tribes that had accepted the nominal sovereignty of the Iroquois.  Consequently, New York claimed all the land occupied by these tribes, which extended westward nearly to what is now Michigan.  After the Spanish gained control of the southwest it was recognized that these claims now extended only to the Mississippi River.

The original charters of Virginia, North Carolina, and Georgia also extended to the western sea, although by the time of the Revolution was valid only to the Mississippi River given the Spanish occupation of the southwest.  South Carolina likewise had some claims to territory in the west, but was not clearly specified.

The claims of Virginia were further enhanced by the fact that two earlier expeditions had led to the conquest of some western territory.  In 1774, after Parliament had passed the Quebec Act, Lord Dunmore, governor of Virginia, called out a large number of settlers in western part of the colony to suppress an Indian uprising against some of the settlers along the Ohio River.  In November of that year, this force defeated the Shawnees at Point Pleasant and established peace with the Shawnees and their allies.  Virginia then exerted indirect control over the Ohio Valley even before the Revolution; this action, known in history as Lord Dunmore’s War, effectively nullified the British Quebec Act since the colonial settlers controlled it before the British could organize it directly under a government set up by Parliament.  A second action during the Revolution furthered Virginia’s claims.  An expedition led by George Rodgers Clarke began a campaign in Jun 1778 to defeat the British and their Indian allies along the Mississippi and Ohio Rivers.  By the end of July, they had taken Cahokia and Kaskaskia.  By Feb 1779, Clarke had taken Vincennes; this gave Virginia physical control of all the territory along the Ohio River as far as present-day Detroit and westward to present day St. Louis.

The powers given to Congress under the Articles of Confederation to determine territorial questions between the states was contained in the second and third paragraphs of Article IX:

The United States, in Congress assembled, shall also be the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they can not agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress judge sufficient, or being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall, nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned; provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, “well and truly to hear and determine the matter in question, according to the best of his judgment without favour, affection, or hope of reward.”  Provided, also, that no State shall be deprived of territory for the benefit of theUnited States.

            All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions, as they may respect such lands, and the States which passed such grants, are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between the different States.

As seen by this provision, the method of resolution was to be a determination by a special court appointed under the supervision of Congress.  These judges, or commissioners, would then be tasked with formulating a decision on any territorial disputes between states.  This presented three problems.  First, it was not particularly efficient, as each case was to be handled in isolation from every other.  It was probably not a feasible system for resolving large-scale competing territorial claims.  Secondly, there was no provision for conflicts within a state in which one part wished to separate from the other.  Third, there was no provision by which additional states could be added to the Confederation out of any western lands.

The legislature and delegates to Congress from the state of Maryland performed a very useful service to the eventual union by helping to resolve the first of these defects.  The Articles were agreed to and recommended to the states on 15 Nov 1777, and were ratified by eight states on 9 Jul 1778.  But, unlike our Constitution, which could be activated through ratification by any nine of the thirteen states, the Articles required all the states to ratify it before it could go into effect.  The legislature in Maryland, recognizing the difficulties that would ensue over the colonial charters, passed a resolution on 15 Dec 1778 stating their refusal to consider ratification of the Articles until all the states had conveyed their land claims to Congress.  Maryland thus wisely made the activation of the Confederation dependent upon cession of all the competing claims to the western lands.

The states responded to Maryland’s challenge in a most commendable way.  On 19 Apr 1779, New York conceded that Congress should have power to determine its western boundary.  In Oct 1780, Connecticut ceded its western claims except for a small slice of territory just east of what is now Cleveland.  Virginia, who had not only strong claims to western lands, but was actually in control of a great deal of it, magnanimously ceded its claims to Congress on 2 Jan 1781.  Since the claim of Massachusetts was weak, and the territories claimed by North Carolina and Georgia were mostly still wilderness, Maryland authorized its delegation to ratify the Articles on 30 Jan 1781.  Maryland, the final state to ratify, did so on 1 Mar 1781, and Congress officially assumed authority under the Articles on 2 Mar 1781.

The provision contained in the Articles was used once, in the long-standing feud between Pennsylvania and Connecticut regarding the Wyoming Valley, situated in Pennsylvania just north of what is now Scranton.  Although contained entirely within Pennsylvania, the area had been settled by settlers from Connecticut, and was claimed by that state.  A special court convened under the Articles settled this dispute in a ruling on 30 Dec 1782, which was accepted by both sides.

But the power conveyed under the Articles proved insufficient to deal with disputes within the states.  The Maine district of Massachusetts desired to break away and form an independent state.  There had been a long-running feud between New Hampshire and New York regarding the territory now known as Vermont.  This district, although belonging in strictness to New York, desired independence before the Revolution.  It declared itself independent on 15 Jan 1777, calling itself “New Connecticut”, and petitioned for entry into Congress as a fourteenth state.  The name was changed on 8 Jul 1777 to “Vermont”.  The delegation from New York successfully prevented this request from coming before Congress, and it remained unresolved until Vermont formally seceded from New York on 4 Jul 1786.

The case of North Carolina is unique.  In Jun 1784, North Carolina ceded its western claims to Congress on the condition that Congress would have two years to decide how to allocate it.  But the settlers in that area, beset by problems with Indians, were refused help from both Congress and North Carolina, and accordingly set up their own state, named Franklin in 1786.  This led to a low-level civil war in this region, now the state of Tennessee, until 1788, when it was rejoined to North Carolina.  The important pint here is that Congress was too weak to resolve the conflict either way.

Last, we must take notice of the Northwest Ordinance of 13 Jul 1787, passed by Congress to determine the conditions of settlement and eventual statehood for all the lands in the west that had been ceded to Congress.  It was an admirable law, providing an excellent method of settlement, governance as a territory, a prohibition of slavery, and guarantees of certain civil rights.  It superseded an earlier one of 28 Jun 1786, which contained the great defect of permitting slavery in the west.  While the Northwest Ordinance proved to be an excellent expedient, it was done without outside any specific authority in the Articles.  As a result, Congress simply treated this vast territory as a traditional English folk land, in which it is divided and administered ad-hoc as the population increases.  Congress passed it of necessity, as the population was growing.  But the fact that it had no authority to exercise any sovereign authority of this nature only proved the general deficiency of the Articles, for the powers granted would have to be violated as circumstances arose; that could only lead to quarrels and instability among the states.

The requisite power over territory, lacking in the Articles, was granted to Congress under the federal Constitution in Article IV, Section 3:

 [Article IV]

Section 3.  New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

            The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

 

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The Defects of the Articles of Confederation, Part 4

by Edward Posted: Thursday, 7/14/2011

Defects_of_the_Articles_of_Confederation_4  <== PDF version

Synopsis:  This is the fourth in a series on the weaknesses of the Articles of Confederation.  Congress was the only institution under the Articles, which led to some problems.

James Madison mentions in The Federalist Papers #38 that putting all government powers in the hands of a few is inherently risky.  He is referring to the fact that Congress was the only institution under the Articles of Confederation, a purely federal union organized under emergency conditions at the beginning of the Revolutionary War.  He writes:

Is it improper and unsafe to intermix the different powers of government in the same body of men?  Congress, a single body of men, are the sole depositary of all the federal powers.

The issues that arose specifically from this feature are due partly to the nature of deliberative legislative bodies, and partly to the concentration of such a wide variety of powers in a few hands. (The lack of adequate powers will be the subject of other editions of this series.)  When an issue of importance came up, there was no mechanism within the Congress to address it, other than to debate or send to a committee for consideration, whereupon some resolution would be passed or defeated.  It ended up being tasked with every type of problem, but was not ideally suited for those that required immediate attention or a definite determination.  It had a nominal judicial function to render certain types of findings in disputes between the states, but no regular judicial function.  It was also charged with managing the war effort and foreign relations, which sometimes require quick action.

But the larger risk was that all of these powers were lodged in one place.  It was common knowledge among the leaders in the founding generation, from their knowledge of history and the observations of the great political theorists, that the best structure for both efficiency and protection of liberties was an inherent division of power within the government.  Certain structures are inherently more efficient for certain objectives; but efficiency in government, carried too far, leads to a grasping for more powers to do more things efficiently; which in turn leads to a reduction in liberty as the government wields greater power.  The best solution was to divide the government into branches with narrowly-defined powers, and let the mutual ambitions of each cancel each other out.  While each branch has its legitimate sphere of power, the jealousy of the other branches keeps it within its proper limits.

One of the political theorists familiar to the founding generation was Charles de Montesquieu, who laid out his observations on divided government in his book The Spirit of Laws (1748).  In Book IX, he points out the one nation on earth in which political liberty was the main objective of its constitution, that is to say, England.  He proceeds to dissect the characteristics of the English system and how it promoted liberty in a general sense, writing in part:

“6.  Of the Constitution of England.  In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to things that depend on the civil law.

            By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have already been enacted.  By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions.  By the third, he punishes criminals, or determines the disputes that arise between individuals.  The latter we shall call the judiciary power, and the other simply the executive power of the state.

            The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety.  In order to have this liberty, it is requisite the government be constituted as one man need not be afraid of another.

            When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

            Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with violence and oppression.

            There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

           As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole people.  But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.”

The desirability of a system of functional branches was so evident to the delegates to the federal convention, that the first set of resolutions on a new plan, offered by Edmund Randolph on 29 May1787, called for separate legislative, executive, and judicial departments.  On the same day (the fourth of the convention), Charles Pinckney put forward a draft of a constitution; it also called for the same three separate branches.  The next day, Nathaniel Gorham proposed, and his motion was carried, to postpone the discussion of Randolph’s first proposition about the general enlargement of the Articles of Confederation, and consider directly a general revision of the government, in these words [1]:

1.  That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation – namely, common defense, security of liberty, and general welfare.

2.  That no treaty of treaties among the whole or part of the states, as individual sovereignties, would be sufficient.

3.  That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.

The story of the Convention is how the delegates conducted the debate about the exact character of the government; whether it should be entirely national or entirely federal, or a mix; how the members thereof should be chosen, and what the duration of their offices would be; but from this point forward, there was little debate about the necessity and utility of a government with the three familiar branches, instead of Congress alone.

[1]  Jonathan Elliot, Debates on the Adoption of the Federal Constitution, in the Convention Held at Philadelphia in 1787, With a Diary of the Debates in the Congress of the Confederation, as Reported by James Madison, Philadelphia; J. B. Lippincott & Co., 1881, Vol. 5, pp. 126-134

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