Articles of Confederation: Fatal Flaw

During the twenty-five years (1776-1801) government was in Philadelphia, Americans who disliked being ruled by anything really powerful had been bedeviled by repeatedly uncovering something insufficient about a loose association of states. They kept confronting the subtle main problem of depending on unanimous cooperation from all states to obey legitimate mandates of a heavy majority of them. It was perhaps unfair to compel a minority to comply, but much more unfair to empower a minority to thwart a majority. Gradually acknowledging that patchwork repair of their tribal charter of allegiance was not sufficient, and thus adjusting to the idea of living under a common central government, conciliation was sought in devising a model of governance which would get the states out of the road without destroying them, or destroying the Union. Although it is commonplace to say the Articles were a weak failure, they did in fact roughly reflect American attitudes at the beginning of our formative period. By the end of the negotiation, the nature of the final proposal was to define absolutely minimum powers for a national government, enact some minimal prohibitions for the states shown to be necessary by experience, and leaving a vast undefined area of power where the two would have to work out future accommodations. Anticipating later mid-course corrections of demonstrated flaws was an important objective for even a minimalist Constitution, not the least of whose achievements was to create good reason to keep it minimalist. Simplicity keeps it hard to change. Considering the Articles of Confederation and the Constitution as two documents with a continuous goal, we got it right, the second time. And we got it right in the environment of Eighteenth century Quaker Philadelphia, where tolerant examination of new ideas was more venerated than in any other place in the civilized world. With a combination of wisdom and impasse, minor issues were simply left to the future. But that in turn made it possible to define those few issues which must never change. An unexpected virtue of minimalism surfaced eighty years later: many men understood it well enough to die for it.

Edwin Corwin's "John Marshall and the Constitution"

Much has been written about the balance of powers between the three branches of the federal government. However, the real balance of power in the Constitution is between the central government and the constituent states. Balancing power within the central government's branches is a way of preventing one side of this argument from tilting the state/federal balance in its own favor, or slowing down the effect of any victories by one side. From this continuing struggle emerges the explanation for filibusters, the seniority system, the confirmation process for Supreme Court and Cabinet appointments. It also calls into question the Seventeenth Amendment, where the state legislatures lost the power to appoint U.S. Senators. In 1786 the states had all the power, in 2009 state power is much diminished; but it is not entirely gone by any means. The cry for states rights is futile. If states are to wrest power back from the federal government, it will be by the adroit exercise of powers buried within the balanced powers of the federal branches.

While features of the present Constitution can sometimes be linked to correction of flaws in the Articles, one by one amendment never seemed to be enough. Later analysis of Original Intent has often had to contend with the unspoken intent of negotiators to strengthen partisan advantage in later struggles. The political battles being fought at the time, which except for slavery are substantially the same today, were sometimes being promoted for reasons which now seem merely quaint. Fine, everyone can agree it was complex. Still there was a recurring uneasiness: what was the underlying flaw in the Articles? What, as they say, is the take-home point?

One widely accepted summary, probably a correct one, of what was centrally wrong with the Articles of Confederation, lies in a concise observation, which follows, from Edward S. Corwin's book John Marshall and the Constitution:

"The vital defect of the system of government provided by the soon obsolete Articles of Confederation lay in the fact that it operated not upon the individual citizens of the United States but upon the States in their corporate capacities. As a consequence the prescribed duties of any law passed by Congress in pursuance of powers derived from the Articles of Confederation could not be enforced."

And that's how many Revolutionary Americans, possibly most of them, had wanted to have it. They were in revolt against all strong government, not just the King of England. They surely would have applauded Lord Acton's declaration that "All power tends to corrupt, and absolute power corrupts absolutely." Thirteen years of near-anarchy taught them they must at least give some limited powers to a central government, but it was to be no more than absolutely necessary. For some, the Ulster Scots in particular, even the absolutely minimum amount was still just a bit too much.

To revise Professor Corwin's analysis somewhat, the insurmountable obstacle for uniting sovereign states effectively is that they are sovereign, and won't give it up. That no longer concerns America, because the Founding Fathers managed to get around it until the Civil War, and then the Fourteenth Amendment enabled the federal judiciary to attenuate state sovereignty somewhat further without eliminating the architecture of a federation of states. In other words, in two main steps we deprived the states of some sovereignty, but no more than absolutely necessary, and we took more than a century to do it. The European Union currently faces the same obstacle, and this is how we solved it. If they can get the same result in some other peaceful way, good luck to them. Our framers used the language "Congress may...or Congress may not..." They only dared to strip state legislaures of a few powers, the right to issue paper money, the power to interfere in private contracts, and such, as enumerated in Article I, Section X , where the operative phrase is "The states are forbidden to..". The framers were willing to strip Congress of many more specific powers than the states; the Constitution can be read as a proclamation of the powers which any central government simply must possess. There might be other desirable powers, but here is the minimum. After eighty years, individual Southern states asserted their unlimited powers extended to nullification and secession, and because of a perceived need to preserve slavery would not back down. The Constitutional consequence of this national tragedy was the Due Process section of the Fourteenth Amendment, which has since been purported by the Supreme Court to mean that what the federal government may not do, the states may not do, either. However, Due Process traces back to the Magna Charta, and has been so tormented by interpretation that for the purpose stated, it is growing somewhat too elusive to remain useful. For historical reasons, we never gave a fair trial to the original proposal to address the federal/state dilemma. The Constitutional Convention was held in confidence, many delegates changed their minds along the way, and many ideas were more perceived than enunciated. It is plausible that the original strategy originated with Madison's teachers and emerged from many discussions, but there were several delegates in attendance with the sophistication to originate it. In a convention of egotists, there were even a few who would put their ideas in someone else's mouth.

The concept of how to curtail power in a non-violent way, can be called Regulatory Competition. The idea does still work reasonably well with state taxes and corporate regulation. If a state raises a tax, estate tax for example, in a burdensome way, people will flee to a state with more reasonable taxation. Corporations have learned how to shift legal headquarters to Delaware and other states which court them, and in really desperate cases will move factories or whole businesses. There is little doubt this discipline is effective, and little doubt that some cities and states have been punished severely for encouraging an anti-business environment. Whether the Fourteenth Amendment could be cleverly amended to expand this competitive effect without reintroducing segregation or the like, has not been seriously considered, but perhaps it should be. There are however not too many alternatives to consider. As far as advising our European friends is concerned, it would be important to point out that Regulatory Competition completely depends for its effectiveness on freedom to flee to some other state within the union. A common language is a big help to unity, but ability to move is essential, so for practical purposes both are required. Underlying such concessions is a sense of tolerance of cultural differences. That is unfortunately where most such proposed unions have either resorted to violence, or failed to unite. And of course, the power which might otherwise be abused, must then be shifted from the federal, back to the state level. What surfaces is a sort of one-way street. It remains far easier to devolve into little statelets, than to unite for the benefits of scale.

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