Friday, February 23, 2018

Articles of Confederation, Part III: the Anomalous as Evolutionary, contd.

Likewise bearing upon the structure of the union of American states, Article IX also made known that much of the day-to-day administration of the United States would be carried out via a mechanism which almost wholly set it apart from most existing and subsequent state, provincial, and national governments. As per the text thereof, this mechanism would take the form of,

A committee, to sit in the recess of Congress, to be denominated “A Committee of the States,” and to consist of one delegate from each State; and to appoint such other committees and civil officers as me be necessary for managing the general affairs of the United States under their direction – and to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years [.]

Article IX goes on to describe the many and various powers to be exercised by the Committee of the States. As these included nearly all of the capabilities otherwise delegated to Congress itself, said body would seem to have been intended to function as an extension of the authority and jurisdiction of the same. Whenever Congress was in recess, therefore – for up to six months at a time, as per the terms of Article IX – the United States of America would function under what was essentially a directorial style of government. On one hand, in light of the fact that a committee of thirteen people is bound to form a more efficient decision-making body than a legislature of indefinite size, the use of such a system would seem to represent a degree of administrative streamlining otherwise uncommon to the Articles.  On the other, it placed the fledgling American republic at a significant distance from both contemporary state and national governments and that which would later be described by the Constitution.

            Essentially a collegial system of government wherein executive power is exercised by a body of elected or appointed representatives rather than a singular head of state, directorates favor deliberation over decisiveness while also tacitly acknowledging that the effective administration of a complex polity demands at least some degree of procedural consolidation. Historically, governments on this model have been implemented in an attempt either to balance the power and authority of a centralized administration against the concomitant possibilities of corruption and demagoguery or as a means to provide relatively limited – but necessary – cohesion to an otherwise loose confederation of diverse and functionally autonomous states. Perhaps the most famous example thereof arose in France at the height of the Revolution in 1795 – resulting from the excesses of the Committee of Public Safety (1793-1795) and preceding the establishment of the authoritarian Consulate (1799-1804) – though more successful implementations both predated and followed it. Switzerland represents by far the most prominent of the latter, having been governed as a directorial republic since the adoption of its current constitution in 1848. Grounded upon the Swiss Canton’s centuries-long tradition of federalism and decentralization, the national government thereof possesses a collective executive – i.e. the Federal Council – comprised of seven individuals elected by a joint sitting of the upper and lower houses of the national legislature – i.e. the Federal Assembly – for a four year term. Each Councillor takes responsibility for an executive department – as in a cabinet – and the largely ceremonial offices of President and Vice-President rotate among their number on a yearly basis. While this mode of government has proven quite durable within the context of the Swiss federal state, however – wherein a social tendency toward consensus, a reliance on referenda for even minor policy decisions, and a constitutional guarantee of neutrality have collectively contributed to the promotion of a very stable, sober political culture – it remains exceedingly exceptional both currently and historically.

            Indeed, with the exception of the aforementioned French Directory (1795-1799), the only other functioning example of a directorial government native to the era in which the Articles of Confederation were written was that of the state of Pennsylvania. Said government was established upon the adoption of the that state’s first constitution on September 28th, 1776, with Sections 3, 9, and 20 thereof specifically outlining the form, function, and responsibilities of the Supreme Executive Council. The members of this body were to be elected to a three year term as representatives of the City of Philadelphia and the various counties of Pennsylvania – initially this brought their number to twelve, though the creation of further counties increased it to nineteen – with a President and Vice-President selected to serve a one year term by a joint sitting of the Council and the state legislature. As a whole, the Councillors, President, and Vice-President were responsible for appointing magistrates and military officers, preparing and presenting the agenda of the General Assembly, presiding over cases of impeachment, granting pardons or reprieves, and in general ensuring that the laws approved by the state assembly were faithfully carried out. If the length of its existence is any measure of success, the Council’s fourteen year tenure as the executive branch of the government of Pennsylvania – from the adoption of the state’s first constitution in 1776 until its replacement by a second in 1790 – would seem to represent a substantial endorsement. This seems particularly evident when a comparison is made between the style of government favored by Pennsylvania upon its assumption of independence from Britain and those erected by its sister states.

            With the exception of New Hampshire – whose similarly-structured executive council was superseded by a governorship when its original constitution was replaced in 1784 – every other state within the contemporary American republic functioned under some form of elected or appointed singular executive. Some, like those of Delaware or Maryland, were very weak, being selected by the relevant legislatures and quite limited in their capacity for independent decision-making. Other, like New York, were quite strong, owing to the fact that there were popularly elected, faced no limitations on their ability to be re-elected, and enjoyed significant authority over public appointments, the passage of laws, and the ability of the state assembly to carry out its assigned duties. Regardless of these kinds of procedural or structural differences, however, the frequency with which various states authorities chose, in some form or another, to translate their experiences as colonists under a singular executive into a model for their post-independence governments would seem to indicate a strong preference among the citizens of the United States of America, circa 1776/77, for political centralization. Bearing this observation in mind, the creation of a national government by delegates chosen to represent these same states which for up to six months at a time would be governed by a collegial executive would indeed appear a rather anomalous development.    

            The most likely explanation for this choice almost certainly applies to the framers of New Hampshire and Pennsylvania’s aforementioned constitutions as well as it does to the authors of the Articles of Confederation. Indeed, the same reasoning probably also explains the weakness of certain contemporary state governors as compared to their colonial predecessors. The answer, in a word, is fear. Inclined though they appeared to be towards the concept of a singular executive at the head of their respective governments – as much a cultural preference as it was a political one – most of the framers of the first state constitutions nonetheless viewed the practical implications of a powerful head of state with suspicion and distrust. Not only did the history of English/British civilization – of which they considered themselves the inheritors – abound with examples of powerful monarchs whose unchecked authority made possible any number of abuses against theirs subjects’ rights and prerogatives, but the events of the 1760s and 1770s had themselves made clear that even the much-lauded Bill of Rights (1689) was too limited in scope to prevent an aggressive Parliament from abrogating the privileges of certain peoples for whom it claimed to make law. Among the members of the Founding Generation, therefore, structural reform was the obvious answer. The resulting community-wide effort to construct more equitable, more representative, and safer forms of government took on different inflections and produced different results depending on the nature of the task at hand or the political and cultural traditions of the relevant state. Almost universal, however, was a conviction that a centralized, singular executive – on the model of the British monarch or the various colonial governors – was far too dangerous to replicate in America without certain modifications to the basis of its authority and the scope of its power. 

            New York, of course, was the glaring exception. Its first constitution, adopted on April 20th, 1777, was written by and for the landed and merchant elite of that state, for whom the offices of Governor, Chancellor, and the Supreme Court would be in effect – thanks to steep property qualifications on voting and standing for election – their personal property. The constitutions of the twelve remaining states were, by comparison, significantly more aggressive in the ways they sought to circumscribe the power of the relevant chief executives. All of them, for instance, put in place some form of limitation upon the ability of an individual to hold the office of governor or president for a number of years in succession. Many of them also declared that the office of chief executive would be filled via an election within the legislature of the state in question, thus ensuring that the governor or president thereof would be subject to significant restraint and oversight on the part of the relevant lawmaking bodies. Both of these measures represented structural responses to the fear of unchecked executive power that culture and experience had nurtured in the political character of the contemporary American population. The framers of the constitutions of Pennsylvania and New Hampshire arguably took this response to its logical extreme by attempting to do away with the concept of a singular executive altogether – doubtless in response to their own particular experiences during the colonial era – but their efforts nonetheless sprang from the same impulse as that which motivated their counterparts in most other states.  

            This same fear and suspicion of power was almost certainly what moved the framers of the Articles to structure the resulting national government as they did – i.e. without a singular executive, substituting a collegial body in its place. Granted, it was certainly possible that John Dickinson – himself a Pennsylvanian – or certain members of his drafting committee consciously attempted to emulate the examples of their own states in adopting such an unusual model for the national government of the United States, though that needn’t have been the case. The common sense of distrust that surrounded the notion of a strong chief executive was what conditioned the structure of the various state governments to begin with, and doubtless represented a more durable point of consensus than any specific framework or model. While it might perhaps appear rather strange that the resulting discussion amongst the representatives of eleven states with singular executives and two without resulted in a national administration that more closely resembled the latter than the former, the nature of the task would seem to substantially account for its outcome. Just as the framers of most of the state constitutions had been at least somewhat afraid of executive power, and the cohorts from Pennsylvania and New Hampshire appeared to be particularly so due to their respective experiences with unusually strong or arbitrary governors, so the framers of the Articles were doubtless collectively sensitive to both the inherent danger of a powerful chief magistrate and the ease with which national governments could become distant from and unresponsive to their nominal constituents.           

            Revulsion towards what they perceived to be the manifest abuses of successive British governments were, after all, some of the strongest motivating and uniting factors behind the Anglo-American crisis and the resulting political revolution. Certainly the Crown-appointed governors of a number of colonies had also incurred the displeasure of their subjects by seeming to abuse the civil and political rights to which the latter believed they were entitled, but contemporary colonial legislatures often represented bastions of opposition and resistance to exactly this kind of behavior. In consequence, while fear of executive authority was effectively nurtured, loyalty to and trust in specific colonial governments remained generally uninjured. The nearest national government, however – the Crown, Parliament, and the British courts – possessed no such saving grace. British history and culture certainly remained a source of pride for many Americans throughout the era of the Revolution, but the contemporary institutions of British government were almost wholly sources of antagonism towards the petitions and remonstrances of the American people. Evidently far more concerned with successfully regulating an increasingly complex fiscal-military empire than respecting the rights and liberties of a handful of far flung colonists, executive, legislative, and judicial authorities of Great Britain seemed inadvertently to demonstrate that national governments – owing to the sheer number of interests they must find a way to balance – must necessarily deal in abstractions. Unavoidable though this may have been, it likely soured many members of the Founding Generation on the very concept of national political authority. The end result would seem to have been the conviction on their part – largely borne out by the structure of the governments they went on to create – that the most powerful mechanisms of government ought to be those in closest proximity to those they governed. Combined with the aforementioned fear nurtured by many contemporary Americans of a strong chief executive, state legislatures would seem to have been the most trusted institutions, followed by state executives, followed by a national legislature, followed by a national executive.

            The Articles of Confederation – and the structures described in Article IX in particular – certainly appears to reflect this hierarchy of popular confidence. It frames a legislature largely beholden to the states, provides for a collegial executive on only a semi-permanent basis, and makes no provision for a national judiciary of any kind. Indeed, it was something like the logical antithesis of the contemporary British government – with no Crown, no courts, and a weak Parliament incapable of asserting itself in most domestic policy areas. However quickly or emphatically the majority of Americans turned against this form of national administration – aided in large part by the inability of the Articles to respond to the economic and diplomatic hardships that beset the nascent United States in the latter half of the 1780s – even its momentary existence is exceedingly noteworthy. Notwithstanding the length of time it has been in force or the prestige it has accrued as a result, the adoption of the United States Constitution was not the inevitable end result of the American Revolution. Rather, it was the result of a lengthy and complex process whereby experience, assumption, and theory were tested and re-tested under various conditions over the course of a little less than twenty years. Models of state government were tried and modified, which provided lessons for later efforts, which simultaneously informed and were informed by an attempt to create a national government that met both the practical needs and the moral and ethical expectations of a people who had only begun to think of themselves as a nation. The procedures laid out in the aforementioned text of Article IX whereby disputes between states were heard by Congress, or which described and empowered the Committee of the States, are in effect signposts along this path. While they have since been passed by as essential components of an effective national government, they nevertheless illustrate that American constitutional thinking once approached some of the most basic questions about the nature of power and the meaning of sovereignty from a very different perspective than which most present-day Americans are likely familiar.

Friday, February 16, 2018

Articles of Confederation, Part II: the Anomalous as Evolutionary

            Obviously, the thing to discuss when examining the Articles of Confederation – the topic which most closely bears upon the nature of that document and the government it created – is the manner by which it sought to balance the power and priorities of the state governments and the national government of the United States of America. Rest assured there is much to say on that subject, and much that will be said in time. For the moment, however, because historical minutiae is rarely as trivial as it appears, this series will instead begin its exploration of the first constitution of the American republic by drawing attention to some of the clauses and provisions within the text of the Articles that appear especially odd or irregular when viewed through the lens of what Americans shortly came to understand about the nature of federal power and the best means by which to define it. Choices were made by the authors of the Articles that were substantially at odds with what the United States later became under the Constitution, and thus seemed to exert little impact upon the evolution of national power in the American republic. Anomalous though these developments may appear, however, they were surely none of them the product of thoughtlessness or random chance. The authors of the Articles of Confederation may have been naïve, short-sighted, and ill-prepared for the task at hand, but it cannot be doubted that they regarded their work seriously and thoughtfully. They would not have inserted clauses at random, therefore, or attempted to apply a structure to the resulting national government without – to the best of their abilities – reflecting upon the implications of the choices they were making. In consequence, it would seem fair to characterize these aforesaid anomalous elements of the Articles of Confederation as collectively representing a kind of window into contemporary American political thought. Specifically, by attempting to understand them in light of the circumstances under which the Articles themselves were drafted, it would seem possible to tease out some of the base assumptions and prejudices of the framers thereof.

            Consider, for example, what certain of their structural decisions communicate as to what the framers of the Articles believed was possible and/or preferable in the realm of national administrative authority. Whereas the Constitution of the United States grants to the Supreme Court the exclusive right to hear all cases, “In which a State shall be Party” – pursuant to Article III, Section 2 – the ninth of the Articles of Confederation declared that, “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 causes whatever [.]” On the surface, the difference between these mechanisms of interstate adjudication would seem to be mainly procedural. That is to say, while the Framers of the Constitution chose to rely upon both the primacy already enjoyed by the Supreme Court as the authority of last appeal in the American republic and its inherent status as an arbitrator of disputes in assigning to it the task of settling quarrels between states, the framers of the Articles determined to allow Congress to mediate any such differences via the selection and empanelling of commissioners for that purpose. One method is not necessarily better than the other, though that which was established by the Constitution is ostensibly more efficient. Rather, the respective authors of the first and second governing documents of the United States of America would simply seem to have come to different conclusions as to whether a conflict between states was a judicial matter or an administrative one.

            That the decision reached by one group in 1777 was evidently rejected by a second group a decade later, however, almost certainly owed more to an evolving conception of state power than a mere matter of preference. Along with the Presidency, the Supreme Court represents perhaps the most powerful example within the Government of the United States of a truly national institution. The scope of its jurisdiction and the authority granted its rulings ensures that while it may often hear cases of somewhat parochial significance, the decisions it renders will always bear upon every subsequent exercise of public power at every level of government anywhere in America. Delegating to this body the task of settling disagreements between the states seems therefore an eminently sensible choice. Not only are they already bound to observe and implement the rulings thereof, but the Court is designed to function without any consideration for the particular interests of specific parties, communities, or states. No such institution existed under the auspices of the Articles, of course. Congress was really the only permanent mechanism of national government recognized by said document, and its authority over the states, counties, and municipalities of which the American republic was/is comprised nowhere approached the power later to be enjoyed by the United States Supreme Court. Congress could not interpret state laws or declare them invalid, enjoyed sole jurisdiction in a very limited range of policy areas, and was in no way capable of functioning as an impartial guardian of the national well-being.

Quite the opposite, in fact – Congress was supposed to represent the states as states, allow them to exercise their priorities and make their voices heard, and in the process (somehow) distill a national consensus from among their intersecting concerns. The implication thereof – as it bears upon the need for an American government to hear and render decisions upon disagreements between individual states – would seem to be twofold. First, the fact that there was no national judiciary to whom such a responsibility might have more sensibly been assigned appeared to ensure that Congress would of necessity be the only possible forum for the airing of such disputes. Second, and more fundamentally, the fact that the framers of the Articles were reconciled to this arrangement – that their conception of a national government failed to include any institution better able to render decisions of national significance than Congress – speaks volumes about their ability or their willingness to conceive of the United States of America as much more than a relatively loose alliance of independent republics. Certainly, history would demonstrate soon enough that more expansive thinking was both possible and necessary. Indeed, much of what the Framers of the Constitution sought to correct was the inability of the national government under the Articles to behave in a way that prejudiced that national interest over those of the states. The Supreme Court was one of several mechanisms they accordingly designed to both seek out and promote uniformity and harmony in law and government across the whole of the American republic. In addition to being a wholly necessary task for a national government to perform, the settlement of disputes between states was one such means by which this harmonization could be accomplished. While the framers of the Articles appeared to agree with the former assertion, the fact that they assigned the responsibility to Congress – as per the aforementioned Article IX – speaks to their unwillingness to yet bow to the importance of the latter. America, in their minds, was not yet a nation – with needs and interests separate and distinct from those of the states themselves – and they set about creating a framework for its administration accordingly.

Friday, February 9, 2018

Articles of Confederation, Part I: Context

            I should hope that by this point the regular audience of this program has developed some understanding of what the Articles of Confederation and Perpetual Union were and why they are significant to a discussion of the American Founding. For those who may have forgotten, however, or who are just joining us now, they were in effect the first constitution of the American republic, forged in wartime and rendered obsolete by the drafting and ratification of the Constitution of the United States in 1787-88. Compared to that later document – still in force after over two hundred years – the Articles formed a fairly meagre national government whereby the individual states retained nearly all of their accustomed autonomy and Congress acted more as a chamber of debate than a sovereign legislature on the level of the contemporary British Parliament. Much has been written in these pages of the weakness of the Articles, the inability of the resulting government to maintain the cooperation of the various states, and consequently of the issues that arose among America’s ambassadors abroad in securing much-needed trade agreements without any guarantee that they would be honored at home. Indeed, the chief importance of the Articles of Confederation in most histories of the American Founding is that their failings made it necessary to create another, more activist national government whose balance of authority, restraint, energy, and reflection has since – and most emphatically – stood the test of time.

            There is, of course, far more to the Articles than just their shortcomings. While they may not have possessed the proper elements in the proper ratio to effectively bind together the various states during the economically tumultuous post-war era – when debt was rampant, hard currency was scarce, and runaway populism often held sway – they undeniably succeeded in seeing the United States through the bloodshed and privation of the Revolutionary War. Granted, the presence of a common enemy in Britain doubtless did much to engender a sense of solidarity among the often fractious and unruly states. In consequence, while the Articles may indeed have possessed some quality which enabled them to hold what were in effect thirteen independent republics together amidst an extensive military conflict with one of the most powerful empires in the 18th century world, their true significance almost certainly lies elsewhere. Indeed, it may have much more to do with what they represent than what they ever managed to accomplish. Consider, to that end, how and why the Articles came to be. The men who drafted, debated, approved, and ratified them were attempting to erect a national government for what had theretofore been thirteen separate British colonies, each with their own political customs and administrative norms. Furthermore, they were undertaking this task while confronting an empire whose centralizing tendencies formed the very seed of American independence. The results of their efforts, therefore, were surely the product of any number of compromises, ambitions, anxieties, and hopes whereby one might arguably be able to chart the ideological ideal of the Founding Generation as it existed at the height of the American Revolution. A more intriguing prospect would seem difficult to conceive.

            Before delving into any of that, of course, a few words ought to be said about the specific context from which the Articles emerged. First, unlike the Constitution, the Articles were not the product of a convention called to order outside the auspices of the Continental Congress for the express purpose of crafting a frame of government for the United States of America. Rather, they were drafted by a committee formed and delegated by Congress on June 12th, 1776 to prepare a plan of union of the soon-to-be independent states. John Dickinson (1732-1808), delegate from Pennsylvania, was made chairman of this body, which presented its first completed draft to Congress proper on July 12th. A fairly lengthy debate followed, resulting in any number of revisions and which concluded with a final draft in the summer of 1777. Congress subsequently debated this version further, voted to approve it on November 15th, and submitted it to the states for ratification. This process, for the most part, proceeded swiftly. Virginia was the first, on December 16th, 1777, followed by South Carolina, New York, Connecticut, Rhode Island, and Georgia the following February, New Hampshire, Pennsylvania, and Massachusetts in March, North Carolina in April, New Jersey in November, and Delaware in February, 1779. In spite of this fairly rapid progress, however – particularly impressive in light of the fact that these same states were actively fighting off a military invasion – the Articles did not officially take effect until February 2nd, 1781.

There were, in essence, two reasons for this. On one hand, the Articles themselves dictated that ratification would not be deemed successful unless or until all thirteen states voted in the affirmative. Doubtless intended as a concession to the sovereignty of said states – thus preventing those that had not yet approved or had disapproved from being either carried along by the majority or left out of the resulting federation – this decision on the part of the framers of the Articles had the unfortunate effect of allowing a single state to indefinitely postpone the formal establishment of a national government until all of its demands were met. Maryland, as it happened, was that state. Dissatisfied with the claims made by certain of its counterparts – Virginia and New York chief among them – to large swaths of territory in what is now the Midwest, the contemporary government of Maryland maintained that it would not approve a closer union of the states until all parties agreed to cede any lands they held west of the Ohio River to the proposed national government. After holding out for over three years from the time of the approval of the Articles by Congress, and exacting a number of promises from its brethren, Annapolis finally permitted its delegates to affix their names to the document in question in the second month of 1781, thus finally and firmly confirming the legitimacy of the first national government of the United States of America.

While, in practice, this made little effective difference to the manner in which Congress functioned – in spite of Maryland’s stubbornness, the United States operated from 1777-78 as though the Articles had been ratified – that this kind of situation was allowed to arise at all was quite telling. Whereas the Constitution was deemed by its framers to take effect once nine of thirteen states had submitted their approval, and while the national government that resulted likewise pivoted upon the primacy of the majority – be it simple or super – the Articles were conversely structured around the notion that consensus was the only means by which the most important decisions could claim legitimacy. While this was certainly a noble sentiment, the fact that it was fairly quickly cast aside speaks powerfully to both the optimism and the inexperience with which the Articles were crafted. Not only was unanimity required for the new government to be formed, but it was also a necessary ingredient for almost any major policy or initiative that Congress would care to pursue. While the Articles did permit the national government to make financial or military requisitions of the states, for example, these were effectively only requests that the states could freely refuse to honor. As such consensus of opinion was rarely in evidence during the life of the Articles (1777-1789), Congress most often found itself cash-strapped and manifestly unable to provide the Continental Army with the manpower it so desperately needed.

Unfortunately, any attempt to alter this state of affairs by modifying the Articles – so that, for example, the states were bound by law to respect Congressional levies – would have run up against this same basic issue. Just as the approval of all thirteen states was necessary for the Articles themselves to come into force, so was the unanimous approval of every state legislature required for any amendment to achieve the same. By thus exalting consensus to the point of enshrining it as the core value of the government they aimed to create, the framers of the Articles thus crafted a cage around said government, built of their own best intentions and permitting only the most limited movement for its unfortunate inhabitants. Granted, this state of affairs was very much in keeping with the circumstances from which the Articles emerged. Not only were the individuals responsible for drafting, debating, and approving the relevant plan of government almost wholly lacking any practical experience in the realm of law, statecraft, and public affairs that they were about to enter, but the object to which they were ostensibly dedicating their efforts – the United States of America – was as yet something of an abstract and untested concept.

Certainly, the various colonies which preceded the states were possessed of written charters that provided detailed descriptions of the administration thereof, though nearly all of them had been drafted and approved long before the lifetimes of any delegate to Congress circa 1776-77. In consequence, while the authors of the Articles were better equipped than, say, the average inhabitant of Great Britain to understand the form and function of a written constitution, they almost certainly lacked any applied knowledge as to how such things were constructed. Just so, while the fact that the various colonies had successfully coordinated a series of responses to one piece of British legislation after another – the Stamp Act (1765), the Townshend Duties (1767), the Tea Act (1773), the Coercive Acts (1774) – and subsequently cooperated in overseeing Patriot efforts during the opening phase of the Revolutionary War, the notion of binding the thirteen states together in any substantial, permanent way remained something of a novel prospect. Benjamin Franklin (1706-1790), at a meeting of delegates from the various colonies convened in Albany in 1754 at the outset of the Seven Years War (1754-1763), had notably proposed a “Plan of Union” that would have created a kind of American federation within the larger British Empire, though the proposition met with little success. A similar bid submitted to the first Continental Congress in October, 1774 by Pennsylvania delegate Joseph Galloway (1731-1803) was likewise rejected, and along similar lines. Cooperation among the various colonies became increasingly common beginning in the 1750s, and there was certainly something to the notion that being “American” somehow set one apart from being “British.” But the traditions, priorities, resentments, and ambitions of said colonies remained powerful impediments to the success of any proposal that even appeared to threaten their sovereignty.

This state of affairs understandably left the delegates to Congress responsible for crafting a frame of government for the United States of America over the course of 1776-77 in a somewhat awkward position. Not only had they taken on a task for which none of them were particularly well-equipped, but their central objective required a feat of imagination for which few practical examples then existed. Of course the inhabitants of British America were familiar with the concept and characteristics of a national legislature, Parliament serving as a venerable and well-established model. But their aim was not – could not have been – to simply replicate Parliament in an American context. Great Britain was – and continues to be, in large part – a unitary state. The legislature thereof has accordingly functioned without much, if any, concern for the existence of strong sub-national entities like states or provinces. Parliament represents the people of Great Britain, via the mechanism of free and frequent elections, and it accordingly makes law for Great Britain. America, however, could never admit so simple an arrangement. The very crux of the Anglo-American crisis had been the failure of Parliament and the Crown to recognize the sovereignty of both the American people and the colonies to which they identified as citizens. Any American equivalent of Parliament, therefore, by necessity must have pursued the opposite tack. The colonies-cum-states formed an integral part of the contemporary American cultural and political identity, and it was accordingly imperative that they correspondingly occupy a central role in whatever government was formed to administer a prospective union of the same. This was easier said than done, of course, and the potential solutions that Dickinson and his fellow delegates hit upon were understandably somewhat…wobbly.

As if having to account for the existence of strong, assertive states wasn’t problem enough, the framers of the Articles also faced the unusual problem of having to decide which responsibilities could reasonably be considered to fall under the heading of “national interest” at a time when the inhabitants of British America had rarely had cause to think of themselves as belonging to a community that spanned the Atlantic seaboard yet was untethered from Parliament or the Crown. It was true that projects like the aforementioned Albany Congress (1754), the Stamp Act Congress (1765), and the Continental Congress (1774) had encouraged the citizens and governments of the various colonies to begin to think in terms of the sensibilities and objectives that united all Americans, but none of these cooperative ventures embodied quite the same degree of substance as a national government. It was one thing for colonial delegates to assemble and discuss various non-binding proposals in which they identified the interests of their respective communities and quite another for a body intended to represent thirteen different states to make requisitions, conduct military affairs, pursue treaties of alliance or commerce, and administer land donated by those states in a way that spoke to the needs of the nation as a whole. Which powers could be delegated to the national government without violating the sovereignty of the states? Should the states possess a veto on national legislation or would the reverse be permissible? How much authority – and in what ratio – was enough for the national government to enjoy the respect of the American people without arousing their suspicion? Despite all that has occurred in nearly two hundred and fifty years to strengthen the sense of nationality and community nurtured by the citizens of the American republic, these kinds of questions continue to accompany nearly any exercise of federal power by the United States government. It should therefore come as no surprise – and it should to some degree excuse the generally mixed results – that the framers of the Articles were not always certain how to successfully balance and separate state and national priorities.

That the Articles were also crafted under the auspices of the Continental Congress doubtless added further impediments to its authors creating a viable final product, though the impulse behind the project itself was eminently sound. As mentioned above, the committee assigned to draft a plan of union was comprised of sitting delegates to Congress, to whom responsibility was also delegated to debate and approve the end result. In consequence, unlike the later Constitution, the Articles were crafted via a fairly slow and highly deliberative process. Over a year went by between the time that Dickinson submitted the first draft to Congress in July, 1777 and the final draft was approved by the same in November, 1778. Over the course of those many months, any number of articles, provisions, and clauses were doubtless weighed, modified, inserted, or excised as waves of delegates newly appointed to Congress by their respective states made known the concerns held by themselves and their constituents. Compared to the Philadelphia Convention of 1787, whose members drafted, debated, and approved the Constitution in a little less than five months, the process that birthed the Articles of Confederation represents nothing short of a marathon.

It likewise bears noting that the curtain of secrecy under which the Constitution was drafted was necessarily absent during the creation of the Articles. In the midst of a war, with delegates coming and going and the whole of Congress forced to relocate between December, 1776 and February, 1777 from Philadelphia to Baltimore, any such effort at confidentiality would surely have been doomed to failure. The Articles, therefore, were debated in public, in sometimes unsettled circumstances, by a rotating body of delegates, and over the course some sixteen months. The end result of these all these factors would seem to be a working environment in which a whole host of views, perspectives, and priorities were required to at least be considered if not accommodated, some form of external scrutiny was almost always present, and final approval would only result from an affirmative majority vote on the part of a supervising body whose membership and physical conditions were subject to fairly frequent change. Surely this qualifies as a less than ideal context in which to craft the first national government of the newly-minted American union, and may perhaps be said to account for some amount of the shortcomings of the resulting document.

In spite of the manifest impracticality which seemed to attend every circumstance under which the Articles of Confederation were crafted, however, the very fact of their existence was the result of a highly pragmatic observation on the part of Congress. Well and truly at war with Great Britain as of April, 1775, and struggling for independence rather than reconciliation as of July, 1776, the Thirteen Colonies were in desperate need of both international recognition and military and financial aid as the year 1777 dawned and the American victories at Lexington and Concord, Ticonderoga, and Boston gave way to a series of defeats and reversals in and around New York City. The obvious solution – and that which Congress hit upon – was the enlisting of foreign allies. France, for one, appeared a natural choice, owing mainly to its longstanding rivalry with Great Britain and its desire for unrestricted access to American markets and raw materials. The Dutch Republic, whose trade wars with Britain had spanned the better part of fifty years from the middle of the 17th century, likewise seemed a probable supporter of American independence in the event that a suitable offer was made. In addition to sizable loans, direct military assistance, and diversionary attacks on British trade, these venerable European powers could be encouraged to exert the necessary diplomatic pressure to both bring Great Britain to the negotiating table and ensure that the newly-minted United States of America was afforded the respect it was owed as an independent nation and an ally in good standing. Promising though these prospects were, however, there were as yet certain logistical issues that wanted resolving before agreements between the United States of America and Britain’s various continental rivals could be signed and sealed. 

While the formal declaration of American independence effectively rendered moot any concerns that prospective allies might have nurtured as to the propriety of intervening in what was otherwise an internal conflict of the British Empire – as per the parameters of the Peace of Westphalia (1648) and its influential recognition of national sovereignty – there remained the question of whom precisely the nations in question would be negotiating with. The Continental Congress served reasonably well as a mechanism of interstate coordination and debate, but it lacked most of the characteristics that contemporary European sensibilities had come to associate with national governments. Absent the President of Congress – whose authority and duties resembled those of the contemporary Speaker of the House of Commons – there was no chief executive, nor any executive departments, nor an accompanying order of precedence. Responsibility for specific policy areas was exercised through a series of committees – some temporary, others permanent – with every major decision put to a vote by the larger body of delegates. And while Congress, in this state, managed to commission military officers and ambassadors, issue paper currency, and allocate requisitions of men and resources, it remained something of an ad-hoc institution bound together only by the voluntary participation of its constituent states. For the European empires to whom the United States wished to present its case, such a precarious state of affairs would have done little to inspire either confidence or trust.

A more substantial union of the states was called for – one which possessed the authority to create administrative departments, delegate authority on a permanent basis, and ratify treaties on behalf of its constituent states. Accordingly, Congress responded to the June 7th, 1776 resolution of Virginia delegate Richard Henry Lee (1732-1794) that the united colonies ought to declare their liberation from British rule by commissioning three committees to draft three separate but linked documents. The first, the so-called “Committee of Five” set to work on a formal, written affirmation of the logic and reasoning behind the independence of the American states. The second committee was instructed to create a model treaty by which the United States might begin to seal the foreign military and economic agreements it so sorely required. And the third, led by the aforementioned John Dickinson, was given the task of creating a frame of government by which the effects of first committee’s declaration would be consolidated and made manifest and the product of the second committee’s efforts would be given substance and strength. The resulting Articles of Confederation were most certainly flawed, owing in large part to the circumstances of their creation. Nonetheless, their very existence was the product of a fairly insightful reading of contemporary European diplomatic norms on the part of authorities in Congress.

Friday, February 2, 2018

Declaration of the Causes and Necessity of Taking up Arms, Part X: Reconciliations

            Though it may appear something of a contradiction to repeatedly affirm the essential Britishness of some of the arguments offered in given document after having asserted at length the essential Americanness of certain other arguments in that same text, Jefferson and Dickinson’s Declaration of the Causes and Necessity of Taking up Arms most certainly supports both readings of its author’s intentions. By July of 1775, Great Britain and the united colonies were essentially in a state of war, with casualties having been suffered on both sides as the Siege of Boston dragged on and the Invasion of Quebec neared the end of its planning stage. Having expressed and debated their own sense of identity, the legacy of their forebears, and their place in the British Empire at length in private and public discourse – in treatises and pamphlets and satires offered by the likes of Thomas Jefferson, Alexander Hamilton, and Benjamin Franklin, among others – Americans were now being forced to weigh the depth of their loyalty to a distant monarch against the significance and implications of their personal and collective history. If the very fact of having taken up arms against British authority is any indication, the latter seemed to have prevailed over the former. The liberties that the people of British America enjoyed had been secured and sanctified by the blood and toil of their ancestors, Jefferson and Dickinson asserted accordingly, creating an obligation that cut deeper than obedience to governments or kings.

            At the same time, the means by which this conviction was expressed borrowed heavily and consciously from the history and traditions of Britain itself. Notwithstanding the assertions of people like Thomas Jefferson that the inhabitants of British America formed a distinct community from that which their forebears had left behind, Britain remained absolutely essential to the American cultural, political, and social vocabulary. The rights they believed their hallowed ancestors had sanctified – which they in turn felt it their duty to preserve – were explicitly British in origin. Accordingly, their points of reference in the context of a struggle against authority and for liberty were in large part British in character – from referring to themselves as Whigs to lamenting the violations being committed in Parliament against the principles of the Glorious Revolution. It was therefore entirely consistent that the mechanisms by which they asserted their sovereignty – i.e. establishing alternative governments to those they deemed no longer legitimate – should have likewise replicated the basic circumstances of key moments in British history. In asserting the primacy of their rights, therefore, and celebrating their status as political outsiders, and privileging principles like legislative supremacy and the rule of law, the united colonies were effectively attempting to carve out a space for a distinctly American identity within and according to the logic of the existing British socio-cultural sphere. 

            Certain elements of the text of Jefferson and Dickinson’s 1775 Declaration would seem to affirm this contention.  When given to reflect upon the nature of their dispute with successive British governments, for example, the scribes chosen by the united colonies to supply a written justification for their having taken up arms against the British administration of America appeared entirely comfortable with expressing respect for the institutions of the Empire, affection for many of the personalities that governed it, and even a sense of contentment with their homelands’ accustomed place as its far flung western province. Certainly they bore malice towards the ministers and military authorities whose greed, ambition, and corruption had done injury to the rights and liberties of the people of America. But this antipathy did not translate into any desire on the part of the latter to destroy the existing Anglo-American relationship. As the aforementioned document made quite clear, the united colonies were displeased with the governments of men like Lord Bute and Lord North, distrusted the actions of magistrates like Guy Carleton, and rejected the directives of officers like Thomas Gage precisely because they wished to preserve the relationship between themselves and Great Britain that had theretofore permitted both parties to flourish. Doubtless this appeared to the accused ministers and magistrates to be a contradictory and self-defeating motivation – how could one attempt to preserve the British Empire by threatening to destroy it? To the membership of the Continental Congress and their supporters in the various colonial governments, however, there was nothing self-defeating about it. In July of 1775 – in spite of the battles that had been fought in Massachusetts and New York, and the pending invasion of British Quebec – it was the sincere conviction of the leadership of the united colonies that they and their countrymen were proud to be British and would have preferred continuing to be so. For such an outcome to be acceptable, however, it would have to be on terms amenable to their particular American sensibilities.

            The manner by which it attempts to reconcile these impulses – the desire to be British and the desire to be American – is precisely what makes Jefferson and Dickinson’s 1775 Declaration so compelling. Whereas the current popular conception of the American Revolution – built upon over two centuries of memorialization and media depictions – tends to characterize the colonial population of late 18th century as having developed a uniform distaste for all things British by the time hostilities commenced in April, 1775, and furthermore inclines towards an understanding of the Battles of Lexington and Concord as a point-of-no-return for Congress and the British alike, said document gives evidence of a far less definite and far more complicated state of affairs. American affection for Britain remained high, it reveals, even after conflict had well and truly commenced. To that end, the object of armed resistance was not, as yet, to secure the independence of British America, but rather to accomplish the removal of those elements which had threatened the rights and liberties of the American people and further secure their place as willing and eager members of the British imperial family. That their declaration to that end approached the relevant issues of sovereignty and liberty in a manner entirely consistent with British history and tradition further attests to this conviction, naïve though it may have been.

            Indeed, it would be difficult to imagine any plausible scenario in which the Thirteen Colonies remained a part of the British Empire without any government thereof at some point threatening the rights and liberties of the American people in pursuit of political or economic centralization. What the united colonies seemed eager to preserve – and what certain supporters of America in British elite circles seemed to think it was possible to achieve – was a status quo whereby Parliament simply agreed by custom never to violate the sovereignty of the Crown’s subjects in America. Absent any laws or constitutional strictures to that effect, however – neither the Magna Carta nor the Bill of Rights had anything to say about the rights of British subjects not represented in Parliament – and in view of the pressures exerted upon the British Empire by its European rivals to secure its overseas possessions and their resources against foreign encroachment, this would seem a somewhat fantastical proposition. Whatever the means by which the various colonies were founded – via individual initiative, private capital, official patronage, or some mixture thereof – successive British governments had devoted money, men, and resources into seeing that they remained subjects of the Crown. Thus reinforced in the idea that British America represented a form of investment, a source of commodities, or a symbol of prestige, it would doubtless have taken a significant effort of will for the contemporary British elite – political, economic, or military – to commit to respecting the rights and liberties of fellow subjects in America. The terms of British Constitution placed them under no formal obligation to do so, and the practical needs of their ever-expanding empire effectively demanded they do otherwise.

            All that being said, the cited assertions put forward in Jefferson and Dickinson’s 1775 Declaration attest to the fact that the membership of the Continental Congress believed that a lasting reconciliation was possible. In spite of the actions of military officers and colonial administrators to more firmly secure British rule in North America – pursued, by all accounts, in good faith – the efforts of successive governments to lay taxes upon the colonies, regulate their trade, or influence their governments – carried out, to be sure, with the best interests of the Empire in mind – and vibrant examples of human weakness, cruelty, and ambition having played out in the process, they remained somehow convinced that it was possible to be British and American, that both of these identities were founded upon a fundamental respect for certain rights and liberties, and that a prosperous, powerful empire could exist that embraced this principle as its guiding light. Naïve, they may have been, or foolish, or short-sighted. But if they were those things, they were also optimistic, principled, and hopeful.

            And so, let that be what the Declaration of the Causes and Necessity of Taking up Arms represents – that in spite of the popular conception of the Revolution as being a vehicle for American anger or resentment at British rule, the Founders themselves have given us every reason to believe that theirs was a struggle based on hope.  

            Anyway, that’s just my slightly sappy take on it. Take a look for yourself.