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.
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