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February 2017 Policy Study, Number 17-2

   

A Commentary on the American Founding

   

Part 9

   

 

The first attempt to establish a constitution for the purpose of uniting the thirteen American colonies was the Articles of Confederation.  It was adopted by the Continental Congress in 1777, ratified by the sovereign states over the next four years, and was put into effect in 1781.  This created a “union in perpetuity” of the thirteen “united (sic) States of America,” and produced a confederation of sovereign states.  It is very important, at this point, to understand the properties of a confederation.  Today the words, “federation” and “confederation,” have almost come to be synonymous, and indeed, a federation has most of the properties of a confederation.  But there is a very major difference in at least one respect.  In its very simplest meaning, a federation is a league or a union.  This is the definition most of us hold in our minds, and we tend not to pursue the matter further.  It is deficient in that it tells us nothing of the properties of a federation.  The critical point to remember is this:  a federation is the act of uniting in a league (union) by the mutual consent of each member, whereupon each member agrees to subordinate its own power (accede) to that of a central authority in the pursuance of mutual or common affairs.  If you read the first paragraph with care, you may have already perceived in this definition a difference of note.  A confederation is established for a special purpose and is of a permanent nature.  Their attempt was to create a “union in perpetuity.”

 

By comparison, this relationship of states and the way it functioned was probably more analogous to the NATO (North Atlantic Treaty Organization) defense treaty than to our present form of federal government.  The states retained a much higher degree of autonomy than we enjoy today.  Hearken back to that section of the Declaration of Independence, for its import cannot be too deeply understood:

 

We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.  (Emphasis added).

 

The words “in General Congress, Assembled” mean in the common interest of the participating entities, the nascent states, the colonies.  The words “do, in the Name, and by Authority of” mean that the governments of the colonies are merely agents of the citizens of the respective colonies assembled there.  The phrase “Free and Independent States” means that these agents of the people (the colonies) are acting as free and independent sovereign entities (not as an entity of the whole) and have every intention of maintaining this arrangement.  If you will keep this paragraph in mind, it will be much easier to understand why our Founders constructed the Articles of Confederation, and consequently the Constitution, the way that they did.

 

The Confederation was endowed with few powers and had a very limited ability to promote the compliance of the sovereign states.  Thus restricted, the autonomy of the states was more or less complete.  That this instrument was designed in such a manner was no accident.  It is important to understand that our Founders were not uninformed in such matters, nor were they merely careless in their construction of the instrument.  They wanted it that way!  They not only had a healthy respect for a strong central government, but also a reasoned fear and distrust, born of recent and unpleasant experience.  This arrangement did not work well. The very autonomy of the states was the weakness of the instrument.  With each state pursuing its own parochial interests, the desired benefits of a weak union did not materialize.  The ineffectiveness of the instrument prompted them to exercise one of the rights they reserved and stated prominently in the Declaration of Independence.  In 1789, even though what they had established was supposed to be a “perpetual union,” they abolished it.  And undeterred, they adopted our present Constitution.

 

The new constitution was designed to overcome the aforementioned problem with the Articles of Confederation.  Even so, it wasn’t intended to be solely a national or central government.  It was designed to retain a strong flavor of federalism.  It is necessary at this point to establish the meaning and understanding of the terms “national” and “federal” as our Founders perceived them.  The following, rather lengthy, extract written by James Madison in The Federalist Papers, No. 39, should be of some assistance in this provision.  It will also provide us with some guidance for discerning their probable intent.  (In the following quotations, all emphasis in italic is ascribed to James Madison and any emphasis in bold will be attributable to the author.)

 

First. — In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.  On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.  It is to be the assent and ratification of the several States, derived from the supreme authority in each State — the authority of the people themselves.  The act, therefore, establishing the Constitution will not be a national but a federal act.

 

That it will be a federal and not a national act, as these terms are understood by the objectors — the act of the people, as forming so many independent States, not as forming an aggregate nation — is obvious from this single consideration:  that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States.  It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves.  Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States.  Neither of these rules has been adopted.  Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act.  In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.

 

The next relation is to the sources from which the ordinary powers of government are to be derived.  The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion and on the same principle as they are in the legislature of a particular State.  So far the government is national, not federal.  The Senate, on the other hand, will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.  So far the government is federal, not national.  The executive power will be derived from a very compound source.  The immediate election of the President is to be made by the States in their political characters.  The votes allotted to them are in a compound ratio, which considers them [states] members of the same society.  The eventual election, again, is to be made by that branch of the legislature, which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations from so many distinct and coequal bodies politic.  From this aspect of the government it appears to be of mixed character, presenting at least as many federal as national features.

 

The difference between a federal and national government, as it relates to the operation of the government, is by the adversaries of the plan of the convention supposed to consist in this, that in the former [federal] the powers operate on the political bodies composing the Confederacy in their political capacities; in the latter [national], on the individual citizens composing the nation in their individual capacities.  On trying the Constitution by this criterion, it falls under the national not the federal character; though perhaps not so completely as has been understood.  In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only.  But the operation of the government on the people in their individual capacities, in its ordinary and most essential proceedings, will, in the sense of its opponents, on the whole, designate it, in this relation, a national government.

 

But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers.  The idea of a national government involves in it not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.  Among a people consolidated into one nation [national], this supremacy is completely vested in the national legislature.  Among communities united for particular purposes [federal], it is vested partly in the general and partly in the municipal legislatures.  In the former [national] case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure.  In the latter [federal], the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their general spheres, to the general authority than the general authority is subject to them, within its own sphere.  In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.  The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both. 

 

   

 

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