Archive for October, 2011

The Defects of the Articles of Confederation, Part 15

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The first fourteen essays in this series covered in detail some of the most serious problems encountered under the Articles of Confederation.  Most of them arose because Congress did not have sufficient power under that agreement to perform necessary duties.  It is important to remember that the U. S. Constitution, as a successor to the Articles, represented in some ways, a transfer of power from the several states to a new federal government.  There was not much question that a change was necessary — the nation was beginning to fall apart owing partly to the weakness of Congress and partly to the jealousies of the states.

A formal transfer of power is not to be taken lightly.  The people of that era knew full well that if the states agreed to give up powers to the federal government, those powers would never return to the states.  It is a testament to the wisdom of those who wrote the Constitution as well as those that urged its ratification on the state level, that the founding generation got the division of power between states and the federal government about right.  The system worked well from 1788 to about the time of World War I, when the federal government began in earnest to assert undue powers.  That is of course a very big subject for a later time.  For now, the following is a summary of the powers that were not granted to Congress under the Articles of Confederation, but were granted to some portion of the federal government in the U. S. Constitution.

1.  The creation of an Executive Department per Article 2, to: a) enforce the laws, b) control foreign policy, c) to be Commander-in-Chief of the military, d) make treaties, subject to ratification by the Senate; e) nominate federal officials, including Supreme Court justices, f) is charged with ensuring that the laws are executed faithfully; and g) has power to commission all officers of the U. S.  See parts 3, 4, 5, and 14 of this series.

2.  The creation of a judicial system per Article 3, to: a) hear all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties; b) those affecting ambassadors, other public ministers and consuls; c) of admiralty and maritime jurisdiction; d) those in which the United States is a party; e) between two or more states; and f) certain types of cases involving citizens and states.  The Supreme Court also has appellate power in both law and fact except as Congress may determine.  See part 14 of this series.

3.  The power to obtain direct revenue for the federal government through the “power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”  See part 9 of this series.

4.  The power to call out the militia to: a) execute the laws; and b) respond to invasions and revolts.  Congress also is granted the power to organize, arm, and determine the actions of the militia when called out to service under the United States.  See parts 2 and 8 of this series.

5.   The power to determine regulations for the regular armed forces, transferring the power to provide for the regular army from levies on the states to a central federal power.  See part 2 of this series.

6.  The power to guarantee a republican government in every state in order to ensure that the states would be immune from political revolutions.  See part 8 of this series.

7.  The power to: a) administrate territories; and b) admit new states.  These were necessary in order to regularize the large western area that was rapidly being populated until such time as they qualified for statehood.  See part 6 of this series.

8.  The power to regulate: a) foreign commerce; and b) commerce between the states.  These powers were necessary to respond to the acts of foreign nations affecting the economy of the U. S and also to control the predatory activities of some states upon the others.  See parts 3 and 5 of this series.

9.  The exclusive power to: a) coin money; b) regulate its value; c) regulate the value of foreign money; and d) define and punish counterfeiting of the coin and securities of the U. S.  These powers were necessary to end the abuses of paper currency issued by the states and confusion caused by the different values of state issues.  See part 10 of this series.

10.  The power to impose taxes and duties in order to affect the slave trade; see part 11 of this series.

11.  The power to punish offenses against the law of nations.

12.  The power to establish uniform rules on bankruptcy.

13.  The power to create post-roads.

14.   The power to grant patents and copyrights.

15.  The power to establish a new class of federal property, such as docks, arsenals, forts, etc.

The next edition will review the powers that were originally granted to Congress under the Articles of Confederation, but were modified or clarified in the Constitution.


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The Defects of the Articles of Confederation, Part 14

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The Articles of Confederation were initially proposed in the wartime emergency of 1775-1776 and were ratified by all the states by 1781; but the structure of the Confederation was not conducive to long-term stability.  Congress was granted certain powers under the Articles: a) to determine the amount of requisitions each state was to pay; b) to declare war and make peace; c) to send and receive ambassadors to foreign nations; d) to negotiate and ratify treaties; e) to determine rules for disposition of captures at sea; f) to grant letters of marque (authorizing private piracy on behalf of the U. S.); g) to convene courts for trials of crimes committed at sea; h) to be the appeal of last resort in disputes between the states; i) to regulate coinage issued by Congress or by the states; j) to establish uniform weights and measures throughout the United States; k) to regulate trade with the Indian tribes; l) to create post offices; m) to exercise overall command and control of the military forces; n) to appoint some officers in the army and all in the navy; and o) to commission all officers in the service of the United States.

One major difficulty was that Congress did not have the ability to regularly enforce any of its laws nor the means to punish violations of them.  This series of essays has presented considerable evidence to that effect, especially concerning Congress’ inability to maintain an army, raise revenue, ensure adherence to treaties, manage territories, respond to foreign policies, or regulate commerce.  A stable government must, as a minimum, have an executive function to enforce its laws and a judicial system to punish violations of valid laws and to interpret the law itself.

Alexander Hamilton addressed both of these problems in The Federalist Papers.  First, in No. 21, he cites Congress’ inability to enforce any of its laws:

The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode.  There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, “that each State shall retain every power, jurisdiction, and right, not expressly delegated to theUnited States in Congress assembled.”  There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism.  If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws.  It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.

 Hamilton then discusses in No. 22, the lack of a judicial system:

A circumstance which crowns the defects of the Confederation remains yet to be mentioned, — the want of a judiciary power.  Laws are a dead letter without courts to expound and define their true meaning and operation.  The treaties of theUnited States, to have any force at all, must be considered as part of the law of the land.  Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.  To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.  And this tribunal ought to be instituted under the same authority which forms the treaties themselves.  These ingredients are both indispensable.  If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts.  There are endless diversities in the opinions of men.  We often see not only different courts but the judges of the came court differing from each other.  To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

In reviewing the chronicle of the Constitutional Convention, it is interesting to note that there was no serious debate about whether an executive or judicial branch should exist.  The need for them was pretty much accepted by all the attendees; the main debates were about the exact form, how they would be constituted, and what specific powers they would have.  There were some who thought an executive council would carry out the executive function better than a single officer; some preferred a system by which the judicial system would be combined with the legislative; some thought all proposed laws by the legislative should be reviewed and modified by the executive and judicial branches.  In the end, the framers developed a Constitution that created three main branches of the federal government, each with defined powers and the means to defend itself from encroachment by the other two.  The framers employed methods to ensure that the executive (President) and judicial branches were separate from each other and independent of the legislative.  There are some areas of overlap between the executive and the legislative (power of making treaties), and considerable influence of both of these upon the judicial branch (nomination of judges by the President and confirmation by the Senate).

The powers granted to the President are: a) to be Commander-in-Chief of the military; b) to be the point of contact for all foreign dignitaries as the nominal head of state; c) to negotiate treaties (but not to ratify them); d) to nominate ambassadors, judges, and certain other offices subject to Senate confirmation; e) to serve as chief administrator over the government departments that enforce the laws made by Congress; and f) to make lower-level appointments in his executive branches charged with those enforcement tasks.

The general power granted to the federal judicial system is to hear all cases in law and equity arising from treaties, federal laws, and the Constitution itself.  The powers are divided as follows: a) creation of a Supreme Court which is to have original jurisdiction in cases affecting ambassadors, public officials, and when a state is a party; and b) creation of lower federal courts to hear cases for which the Supreme Court does not have original jurisdiction.  In all cases, the Supreme Court has an appellate jurisdiction to hear appeals from lower federal courts.

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