Friday, April 27, 2018

Articles of Confederation, Part XI: Forgotten Legacies

            Without delving too deeply into the realm of the political, it would seem appropriate to conclude this current series with a momentary meditation on the legacy of the Articles of Confederation. Or, rather, it would seem appropriate to discuss at least one of its legacies, for indeed it may be said to have many. For the moment, however, let us concentrate our attention on what the existence of this document says about the relationship between the American people and their government(s). The Articles were written in the midst of a war, by a group of people who between them possessed not one jot of practical experience creating codified constitutions, within a cultural context that placed great emphasis upon the sanctity of a particular unwritten constitution, and under the auspices of an assembly dominated by newly independent states whose governments were loath to see their nascent autonomy threatened. These were far from ideal circumstances, to say the least, and the outcome was a predictably imperfect document. The national government described by the Articles was weak, deferential to the states, largely incapable of asserting a will of its own, and prone to indecisiveness. In some ways, this was doubtless precisely what its creators intended. The memory of Parliamentary overreach was yet too fresh to allow for anything but the smallest possible degree of authority and discretion to be exercised by anything claiming to be a national government for the union of American states. This fact – and the particulars of how its authors allocated specific powers and responsibilities – is most definitely worth remembering about the Articles of Confederation. But it is also terribly important not to forget that the Articles do not represent the end all and be all of American constitutionalism in a national context. Rather, they constitute a necessary first draft.

            Because of course the Founding Generation tried again. Seven years after their formal adoption in 1781 – through what was perhaps a somewhat less than forthright process – the Articles of Confederation were replaced as the governing charter of the American union by the aptly-named Constitution of the United States. Said document – two of whose signatories, John Dickinson (1732-1808) and Roger Sherman (1721-1793), had earlier signed the Articles – described a far more robust and activist government than as yet existed, with a powerful executive, a national judiciary, and exclusive authority over a number of major policy areas. That a significant number of prominent statesmen believed it necessary to craft such a thing – that they were in agreement as to the necessity of doing away with the Articles of Confederation – was truly remarkable. As discussed at length in the series, the essential character of the first national government in the history of the United States – i.e. weak, non-interventionist, deferential to the states, etc. – was very much a reflection of the contemporary attitudes, fears, and convictions of its architects. So thoroughly was the membership of the Continental Congress willing to repudiate the examples of Parliament and the Crown that they gave sanction to an administrative framework for the American union that reserved only the slightest possible sliver of the prerogatives that had traditionally been delegated to the British government and gave otherwise free reign to the states to manage their own affairs. This was not surprising, all things considered. What was – indeed, what arguably continues to be – is that this same class of public servants, merchants, lawyers, doctors, and scholars determined less than a decade later that the United States of America was in need of a government that far more closely resembled Parliament and the Crown than they had earlier been willing to admit.

            This was neither an easy decision nor a unanimous one. Disagreements within the Constitutional Convention (May 25th – September 17th, 1787) were many, varied, and often intense – indeed, more than one delegate chose either to depart the gathering before its work was completed or abstained from signing their names to the completed document – and several of the state ratifying conventions voted to approve by distressingly narrow margins – Virginia, for example, voted 89-79 in favor, while New York cut it even closer with a final tally of 30-27. But the fact that the effort itself ultimately proved successful would seem to say something rather significant about the character of the American people. However much the contemporary membership of the Continental Congress, their supporters in the state governments, and the many millions of constituents thereof truly believed in the late 1770s that the Articles of Confederation represented the ideal form of a national administration for the American union, they evidently did not believe it so firmly or so fervently that they were incapable of imagining – and indeed, of adopting – a better way of doing things. They were not, in short, so precious about something they had worked hard to create that they were incapable of recognizing the need for change when it arose. The adoption of the United States Constitution in light of the manifest shortcomings of the Articles of Confederation is certainly the most dramatic example of this attitude in action, though it is hardly the only one worth considering.

            The fact that both the Articles and the Constitution contain provisions explicitly intended to allow for the amendment of the relevant texts would likewise seem to stand in evidence of the pragmatic sensibilities of America’s Founding Generation. While the framers of both of these documents doubtless intended to create governing charters for the United States that would stand the test of time, neither were so sure of the quality of their efforts or of what the future held for their countrymen that they believed it unnecessary to supply the means of modification. The resulting requirements they set for proposed amendments to become law were steep, certainly, but their very inclusion bespeaks a desire for flexibility. And while the Articles of Confederation were not in force long enough for any amendments to be adopted, the Constitution has thus far given rise to twenty-seven amendments across eighteen separate efforts. In consequence, while the wholesale replacement of the Articles still represents the high water mark of a trend in American political culture towards constitutional regeneration, the passage of twenty-seven amendments over the course of two centuries – averaging out to around one amendment every seven years – nonetheless indicates a fairly consistent understanding and application of the underlying principle. And this speaks only to the national level of government. When one also considers the attitudes that generations of Americans have shown towards the notion of modifying – or even replacing – their various state governments, the degree to which they appear culturally amendable to the concept is made clearer still.

            Of the thirteen original state constitutions, only one – Massachusetts, adopted in 1780 – is still in force as of the early 21st century. Of the twelve remaining states, Delaware is on its fourth constitution – adopted in 1897 – Pennsylvania is on its fifth – adopted in 1968 – New Jersey its third – adopted in 1947 – Georgia its tenth – adopted in 1976 – Connecticut its second – adopted in 1965 – Maryland its fourth – adopted in 1867 – South Carolina its seventh – adopted in 1895 – New Hampshire its second – adopted 1784 – Virginia its seventh – adopted in 1971 – New York its fourth – adopted in 1894 – North Carolina its third – adopted in 1971 – and Rhode Island its second – adopted in 1987. As a whole it would seem that Americans have historically not been squeamish about the prospect of questioning the usefulness of the governing charters of their states, creating entirely new ones, and adopting them into law. When one further examines the number of times certain of the state constitution now in force have been amended, this evident tendency towards change and adaptability in the context of constitutional thought appears to be something more like a fundamental maxim of American political culture than either a theory or aberration. The aforementioned Constitution of Massachusetts, for example, has been amended one hundred and twenty times since 1780, most recently in 2000. In consequence, most of the articles of the original document have been modified at least once, with a substantial number bearing two or more such alterations. The Constitution of South Carolina is even more of a patchwork, with its original 1895 text having been amended over three hundred times. The resulting document is some seventy-nine pages long and includes a veritable swarm of annotations, in large part owing to the propensity of the Palmetto State’s residents to write what in other states would be ordinary statute law into the text of their supreme governing charter.

Granting the existence of certain differences in local political culture serving to explain why the Constitution of New York has only been amended six times since 1894 while the Constitution of Maryland has been altered almost two hundred times since 1867, it nonetheless seems reasonable to conclude that the American people are, on average, perfectly able to understand the need for periodic reflection upon the nature of their paramount law. The median number of times the constitution of an American state has been amended is one hundred fifteen, while the United States Constitution itself has sustained twenty-seven such additions. Putting aside the most recent of the former – the Twenty-Seventh Amendment, ratified in 1992, having been originally proposed in 1789 – the most recent alteration to the fundamental frame of government of the United States of America – lowing the voting age to eighteen – was proposed in March, 1971 and ratified the following July. It therefore also seems a perfectly fair characterization to declare that there are millions of Americans alive today who can personally recall their nation’s constitution being changed. Bearing all of this in mind – the frequency with which state constitutions have been amended or replaced, the relatively recent vintage of the last major amendment to the federal constitution, and the fact that the first governing charter of the United States was tossed out almost completely after being in force for less than a decade – any and all declarations by pundits, politicians, or private citizens as to the indelible nature of their nation’s chief governing document would appear exceedingly flimsy.

The events of the last two hundred years have demonstrated plainly enough that the American people fully understand that their constitutions – be they state or federal – can indeed be amended, and that from time to time they should be amended. This conviction has not in fact lessened the degree to which they regard their governing charters with fealty and respect, as certain of the Framers feared excessive modifications would do. On the contrary, the citizens of the United States have come to pride themselves on their adherence to the rule of law and tend to regard their federal constitution in particular with surpassing satisfaction. Their collective amenability to the concept of constitutional modification is arguably a cornerstone these very attitudes. Rather than understand the texts that describe how and why they are governed as having been handed down from on high by some wise and unknowable presence, the American people have been aware since the moment of their nation’s independence that constitutions are written by people to serve people. They have accordingly changed the governing charters of their states – via amendment or wholesale replacement – over and over again as events and changing attitudes made necessary, tossed out their first federal charter once its various deficiencies became overwhelming, and enacted several major alterations to the frame of government that followed. That such efforts were felt to be needed by their instigators and supporters – that they were willing to question the continued validity of the constitution of their state/nation – testifies once again to the pragmatic turn of mind at the heart of American political culture.

Rather than lessen their respect for the very concept of paramount law, however, this propensity for change has quite probably helped to foster a much stronger bond between the citizens of the United States and their fundamental charters. Whereas Americans have, do, and will express their understanding of constitutionalism as embodying a legacy passed on from one generation to the next – with all the attendant emotional attachments – the practice and history of constitutional amendments has rendered the relationship between citizens and governing documents something more than a type of bequest. Because Americans know – have always known, should always know – that their governments were created to serve their needs and are accordingly changeable by their hands, they are accordingly free to understand, say, the Constitution of New York, or of Massachusetts, or of the United States of America as belonging wholly to them and as being as much their own creation as of their long-departed forefathers. While at times this conviction might be momentarily forgotten – as when people speak of the Constitution as though it were carved in stone, or discuss the authors of the same as if the label applied less to the framers of the Twenty-Sixth Amendment than to the original cohort of 1787 – it is and has always remained valid and true. Americans know how to fix something when it is clear that it needs fixing, try as they might to convince themselves otherwise.       
         
The rather misbegotten history of the Articles of Confederation is wholly emblematic of this notion. Fascinating though it may be as an object of study in its own right – as an exemplar, for instance, of the political and philosophical leanings of its authors and their era – the capstone of its legacy is arguably that it was replaced as the paramount law of the United States less than ten years after being adopted. In so doing, however – in proving itself almost completely unworkable as a frame of government – it served to demonstrate something exceedingly significant about the citizens of the nascent American union. Not only were they sufficiently invested in the concept of an “American nation” that they deemed it worthwhile to attempt to form a second national government – rather than, say, let the various states go their separate ways – but they were confident enough in their collective abilities, their knowledge, and their right to do so to fundamentally alter the form and style of the government under which they had won their independence. The Articles of Confederation may have been sufficient to hold the states together during the tumult of the Revolutionary War, but something more was needed to successfully confront the forces unleashed by the peace that followed. By recognizing this fact and by acting on it, the Founding Generation set a precedent that has – perhaps more than any other – shaped the history of the nation they helped create. That this has been occasionally forgotten is unfortunate, but not dire. That it should ever pass from memory entirely, however, would be a tragedy of the highest order.
         
    So that’s my spiel. By all means, take a look for yourself.

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