Articles of Confederation: Fatal Flaw

From 1790 to 1800, Congress met in "Congress Hall." The first 10 amendments to the U.S. Constitution, known as the "Bill of Rights," were also added here.

Philadelphia was the center of the nation from the time of the First Continental Congress1775) until the nation's capitol was moved to the District of Columbia in 1800. For thirteen of those years (from 1775 until the 1788 inauguration of George Washington as the first President under the present Constitution) our governing concept was a confederation of sovereign states. The framework of our rules was a little vague at the beginning of that period, eventually becoming explicit when the Articles of Confederation were ratified in 1781. Later on, when the Constitution was agreed to in 1787, there was another period of ambiguity until the newer rules actually began to apply. Speaking loosely, for thirteen years the country operated along the principles of the Articles of Confederation. For another twelve years, the United States were absorbed in the task of transition from the Articles to the Constitution.

During all the twenty-five years government was in Philadelphia, therefore, Americans were bedeviled by discovering what is unworkable about their original ideal of a loose association of states, discovering next that patchwork repair was not enough, finally after a fresh start, getting used to and revising a newer idea of living under a common central government of their own devising. Although it is commonplace to say the Articles were a weak failure, they did in fact accurately reflect American attitudes at the beginning of a formative period while flaws in those ideas relentlessly surfaced. Correction of demonstrated flaws in the Articles was an important force in shaping a Constitution which would not have been even barely acceptable without those proofs. We got it right, the second time. And we got it right in the environment of Quaker Philadelphia, where tolerant examination of new ideas was more venerated than in any place in the civilized world.

Edwin Corwin's John Marshall and the Constitution (click to buy)

One by one, the main features of the present Constitution can be linked to correction of flaws in the Articles, later giving rise to a busy industry of legal scholars trying to reconstruct Constitutional Intent. Intent, however, cannot be understood without an appreciation of the main political battles being fought at the time, since strong opposing views, which except for slavery are the same disputes in action today, were being promoted, with a view to establishing partisan advantage in later struggles. Fine, everyone can agree it was complex. Still, what was the main flaw in the Articles? What, as they say, is the take-home point?

If there is any generally agreed summary of what was wrong with the Articles of Confederation, it would lie in a paragraph, 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, liked to have it. They were in revolt against central government, not just the King of England. Thirteen years of near-anarchy taught them they must give some limited powers to a central government, but no more than absolutely necessary. Perhaps even the absolutely necessary amount was just a bit too much.

Perpetual?

George Washington Was he the 11th President of the United States?

We must be indebted to Stanley L. Klos for his recent book called President Who? in which he makes a persuasive case that George Washington was actually the eleventh President of the United States, there having been ten previous Presidents under the Articles of Confederation.

In general, the attitude had been that the ten previous Presidents had merely been the presiding officers of Congress, holding an office we might now call Speaker. Indeed, the President under the Constitution doesn't "preside" over anything definable, although the Vice-president clearly presides over the Senate, at least on the infrequent occasions when he is in the room. All of this would seem to be nit-picking word play by history hobbyists, except for one thing.

The issue that Lincoln was raising was whether states who ratified the Articles of Confederation, among other documents, were bound in perpetuity to be members of the United States.

Abraham Lincoln was having a hard time finding a reason to challenge South Carolina's right to secede, which was proclaimed by them as simply revoking their previous ratification of the Constitution in 1789. If they could join the Union, they could un-join the Union, so, Goodbye.

Not so, said Lincoln. When South Carolina ratified the Articles of Confederation in 1778, the Articles clearly stated the Union was to be Articles of Confederation: Article XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwords confirmed by the legislatures of every State. perpetual, making the Constitution merely a clarification of details. There's no doubt the Articles do say perpetual and no doubt South Carolina signed them. However, there is also no doubt that Alabama, Arkansas, Louisiana, Mississippi, and Texas did not sign the Articles. Six hundred thousand casualties later, this fine legal distinction was settled in Lincoln's favor, but not before the Gettysburg Address further muddled Constitutional Law by proposing in effect that the Declaration of Independence informed the Constitution.

The third page from the original text of Abraham Lincoln's first inaugural address with hand-written annotations. [Amplifying text and enhanced image.]

So now Philadelphia has two large, competing, institutions at either end of a long grassy Mall. Each has a paid staff, busily organizing new points of view in competition for legal authority as well as visitors. One really must wish that Lincoln had found some other legal theory to justify military action. The Articles of Confederation, which were anyway not fully ratified until 1781, established a military alliance of thirteen otherwise fairly autonomous states. The Constitution, beginning with the words We, the People,? created a nation of citizens, in 1788.

There's quite a difference, and the second was emphatically based on dissatisfaction with the first.

The Decision of Trenton (1782) Under the Articles of Confederation

Trenton Makes to World Takes

As the Revolution was drawing to an end, it became time to settle the inter-state grievance of Pennsylvania and Connecticut. If they were all going to be United States citizens, it didn't matter much whether the residents of Wilkes-Barre (as it was now known) were governed by the laws of Connecticut or Pennsylvania. But bloody grievances die hard, and slowly. The genteel debates envisioned by the Articles of Confederation were not not equal to settling blood feuds, but they tried. The two states selected judges to represent them, in a negotiated settlement which took place on neutral ground, Trenton, New Jersey. After protracted testimony and prolonged secret deliberation, the judges emerged with a very brief and unexplained decision: Wyoming Valley belonged to Pennsylvania. Period.

Almost every scholar of this subject is convinced that the unwritten decision contained two other provisions. Connecticut was given a piece of Ohio, Western Reserve. And the Pennsylvania representatives privately assured the group that the Pennsylvania Legislature would in time recognize the land titles of the Connecticut settlers who were actually resident on the land. Unfortunately, it is hard if not impossible to enforce an agreement that is secret, and the Connecticut claim to Ohio was eventually eliminated, while the Pennsylvania promise to recognize the land titles of people whose ancestors killed your ancestors, was much delayed, watered down, and resented.

Litchfield County, Extended (1771-1775)

Wilkes-Barre

For four years, the settlers considered the apparently peaceful Wyoming Valley to be part of Litchfield County, Connecticut, and its main little town was called Westmoreland (now Wilkes-Barre, although it still has a Westmoreland Club). However, the high-living, non-Quaker sons of William Penn were ill content to let matters remain that way. Their response was to sell large tracts of land in the area, on condition the purchasers would do whatever fighting was needed to conquer and hold it. The main purchasers were Scotch-Irish from Lancaster County, and the main speculators were prominent Philadelphians with names like Francis, Tilghman, Shippen, Allen, Morris and Biddle. This speculative land sale was to be the source of trouble for decades, because it conflicted with titles to the same land issued by the Susquehanna Company.

The predictable trouble surfaced in 1775, with the Second Pennamite War. Under the command of a man named Plunkett, 700 Pennsylvania soldiers marched to liberate Wyoming, and were soundly defeated by the Connecticut soldiery under the command of Zebulon Butler. There might have been further fighting in this expanded war, except for the other eleven colonies applying great pressure on these two colonies fighting each other with potential jeopardy to the united rebellion against British rule. While the Penn family were definitely royalist in their sympathies, their colonial property put them in an awkward position with their Scotch-Irish allies, who were, in all colonies, the main leaders in the revolution. The effect was to isolate the Connecticut invaders, even though they were the victors in the fighting.

What Happened in Philadelphia on July 4, 1776?

Spirit of 76'

Although the origins of the American Revolution are subtle and complex, even historically controversial, there is less excuse for being muddled about what happened on July 2, 1776, proclaimed in public two days later. The Thirteen Colonies stated they had now changed their goals in the controversy with the British monarchy. For a year before that, the Continental Congress had been corresponding and meeting in Carpenters Hall with the goal of achieving representation in the British parliament -- "No taxation without representation". But the appearance of seven hundred British warships in American waters showed that not only was Parliamentary representation out of the question, but King George III was going to play rough about being challenged. The restructured goal was no longer just representation, it was independence. If we were going to resist a military occupation at the risk of being hanged as traitors, we might as well do it for something more substantial than representation. The meeting had a number of Scotch-Irish Princeton graduates, whose basic loyalty to England was small. Pacifist Pennsylvania, chief among the wavering hold-outs, was mostly won over by its own Benjamin Franklin, who was confident the French could be enlisted to help us. He was promptly dispatched back to Paris to make it happen; Washington was dispatched to hold off that British fleet in the meantime. Jefferson was designated to write a proclamation of righteousness, which even after editing is still pretty unreadable beyond the first couple of sentences. Meeting adjourned.

Colonist's Complaint

The rebels then spent eight years convincing the British they were serious, and have been independent ever since. But, just a minute,here. Reflect on the fact that fighting had been going on for a year in Massachusetts, and that Lord Howe's fleet had set sail a month before the Declaration, actually landing on Staten Island at just about the same time as the Fourth of July. Add the fact that only John Hancock actually signed the document on July 4th, and some of the signers even waited until September. You can sort of see why John Adams never got over the idea that Thomas Jefferson had a big nerve implying the whole thing was his idea. What's more, New England subsequently had to endure a President from Virginia for thirty-two of the first thirty-six years of the new nation because loud talk from New England made the rest of the country nervous. Philadelphia may have been the cradle of Independence, but that was not because it was a colony hot for war, dragging the others along with it. Rather, it was the largest city in the colonies, centrally located. It had a strong pacifist tradition, and it had the most to lose from a pillaging enemy war machine. When Independence was finally stated as the goal, many of its leading citizens moved to Canada.

New England was in the position of having started hostilities, and was about to be subdued by overwhelming force. The Canadians were not going to come to their aid, because they were French, and Catholic, and enough said. What New England and the Scotch-Irish needed was WASP allies, stretching for two thousand miles to the South. By far the largest colony was Virginia, which included what is now Kentucky and West Virginia; it even had some legal claims for vastly larger territory. The rest of the English colonies had plenty of assorted grievances against George III, and almost all of them could see that America was rapidly outgrowing the dependency on the British homeland, without any sign that Parliament was ever going to surrender home rule to them. Perhaps it was unfortunate that New Englanders were so impulsive, but it looked as though a confrontation with the Crown was inevitably coming. Without support, New England was likely to be subdued like Carthage.

And the last hope for flattery and diplomacy, for guile and subtlety, had recently stepped off the boat. Benjamin Franklin, our fabulous man in London, had finally had it "up to here" with the British ministry. He finally was saying what others had been thinking. It was now, or never.

The Proprietor's Dilemma

William Penn

During the century which elapsed after Charles II gave away Pennsylvania to William Penn, a couple hundred thousand people moved in and changed the local character of the place. This transformation of the wilderness explains why the terms of the grant were logical at the time, but proved almost impossible to manage at the time of the Revolution. The Penns with thirty million acres were the largest landholders in America, but by 1776 only five million acres had been sold.

Charles II had written in the Charter that the Penns could have the land if they could maintain order there, a provision reflecting some doubt about the ability of pacifists to shoot the necessary number of Indians, Frenchmen and Spaniards, while retaining the legal right to recover the land if they didn't. On the other hand, the motive for a King delegating away his authority became clear enough when the Penns experienced severe financial strain defending the Northeast corner of the state against the Connecticut invaders. It furthermore helps understand why Benjamin Franklin received such a cold reception when he was sent to London by the colonists to offer civil authority over the state to the crown. The King didn't want the problems, and particularly didn't want the expense. The ambiguities were of course shared all around. William Penn quite shrewdly saw that it was more sensible to treat the Indians decently than to fight with them, and cheaper too; the lesson was not lost on the British crown. But the French posed a much larger world-wide threat, finding it was economical to supply munitions to the Indians on the frontier and stir them up emotionally. The French and Indian War was a small component of the Seven Years War, but its cost utterly overwhelmed the ability of one family to underwrite local diplomacy, and indeed jeapardized the finances of the British Monarch. The result was a need to tax the colonies for their defense. From that, things went downhill and eventually to the Stamp Act, the Townshend duties, and the Tea Tax. Everyone made lots of mistakes as the whole structure underwent revision, and it's all sort of a big pity.

John Penn

With much to lose, the Penn family did pretty well with the resources at hand. By the time of the Revolution, three generations of Penns had divided up ownership shares of the Proprietorship.

Thomas Penn

John Penn was the Governor of the state, residing in his mansion on the Schuylkill called Lansdowne, doing his best to ingratiate the locals. He struggled to be diplomatic when arguing for the decisions actually made by his Uncle Thomas in London. Thomas Penn, on the other hand, was an important friend of the British Ministry, and a notable person in aristocratic England. As the Revolutionary War approached, the problem was how to hold on to 25 million unsold acres, while unsure who was going to win the war.

The strategy adopted was to get out of the business of running local government. John Penn the Governor became a private citizen, just a local real estate agent. He took an oath of allegiance to the Revolutionary government, which in the chaos of the time was equivalent to becoming an American citizen. Meanwhile, the other members of the family remained in England, ready to revise the arrangement if the British won the war. It was all fairly transparent straddling of the issues, which was only even remotely likely to be effective because of the enormous store of goodwill built up over a century. In 1789 revolutionary France, for example, it would not have delayed the tumbrels to the guillotine, five minutes.

Meanwhile, an unexpected difficulty was created. By withdrawing from control of the local government, the Penn family also withdrew from the defense of the state borders against neighboring colonies. Under the circumstances, the Penns were afraid to appeal to the King, while the new government of Pennsylvania found the Articles of Confederation were merely a wartime tribal compact.

U.S. and E.U. Exchange Experiences (1)

The Global Interdependence Center (GIC), founded by Nobelist Lawrence Klein in 1976, brings noted foreign financiers to address Philadelphians interested in finance, and takes those Philadelphians abroad to return the visits. It's a gracious, entertaining, and highly stimulating travel club of very nice folks. Its 25th Annual Monetary and Trade Conference was especially exhilarating. Christian Noyer, President of the Banque de France, gave a description of the rationale and direction of the European common currency. Since he was the Euro's driving force right from the beginning, the experience of hearing him was pretty much like hearing Alexander Hamilton tell the story of the founding of the American banking system. Such a notable event needs to be reported.

Christian Noyer urges that the central concept of the European Union is deliberate, voluntary surrender of national sovereignty -- for a mutually beneficial purpose. The declared purpose of limited surrender of national control of the currency is economic; price stability, lower interest rates, the stimulation of international trade by lowering transaction costs. But the unstated, grander, purpose is the elimination of war. Because the limited technical purpose has been achieved in almost all areas, the grander purpose of eliminating war has not been an accident. With this simple, even humble, declaration it immediately becomes possible for a mildly irritated American audience to understand that European reluctance to become our active military ally grows out of a highly commendable set of motives, and widely differing historical experiences.

As things worked out, the new nations who have recently joined the Union ("The U") are anxious to modernize, because the people of those nations demand modernization and their leaders must agree to achieve it. Inflation, that hitherto inevitable fund-raiser for national goverments, must be eliminated in order to join, and stays eliminated because the other members of The U will not tolerate it in a partner. In his curious way, "price stability" has placed the Union on the side of the people against the locally powerful, although it would be untactful to emphasize it. From the elimination of inflation comes lower interest rates, and from that, a stable currency. From that comes economic growth, for which the political lingo seems to be "modernity". As a consequence of this undeniable success, all nations in the area want to join the Union, and none wants to leave it. If that prevailing attitude doesn't lead to the elimination of what might then be a civil war, it's hard to know what will eliminate it. The marvel of all this skillful analysis is how natural, soft and modest it sounds, feeling like an old soft shoe. Eventual political unification is clearly an old dream in Noyer's head, but for now he seems content with the vindication that it is possible to have a currency without having a country control it. It seems to be a steamroller of economic logic, flattening out the pretenses of merely political power.

No less an economist than Martin Feldstein has written that stable unified currency is doomed in the European context of widely diverse labor markets; Noyer seems pleasantly serene in the face of this argument. He wouldn't say so, of course, but some in the audience got the idea that Noyer probably believes the power of this cooperative idea will eventually discipline the unions the way it disciplined the politicians. One certainly hopes so, for the sake of this smooth, cuddly French aristocrat.

U.S. and E.U. Exchange Experiences (2)

America can learn about itself from the E.U.

To see the economic power of unifying the currencies of Europe, and the political attractiveness of its results among the people of those countries, makes it suddenly more clear why our own Civil War is so often said to be about the Union and not about slavery. Unlike our grandfathers in the Civil War, we take the benefits of free interstate commerce for granted, while for them it was still a demonstrated achievement. Lincoln for example, was an ardent Whig, which in those days meant an advocate of helping commerce by the intervention of government. There is even a shadow of present concern that Americans will have so forgotten the lessons of free interstate commerce that they might somehow surrender it for some other blandishment. Certainly, free international trade has its enemies. The abolition of slavery was of course an overdue achievement, too, but perhaps our long slog toward equal rights has allowed this second crusade to overshadow the history of what really was the main one. In case anyone feels impelled to start a quarrel about this viewpoint, let me remind him that Quakers started the abolition movement, right here in Philadelphia, and have nothing to apologize about.

Going further back, we got our Constitution more or less right before we convinced the public of the economic benefits of unification; eventually we got a bad Civil War. The Europeans learned that complicated words in a Constitution have consequences, suspiciously loaded the proposed document with interminable conditions, and eventually rejected it. It's an old political trap that a proposal so loaded with attractions will often gather more opposition from objectors to multiple small points than proponents for the big points. Keep it simple, senor. If you expect men to die for that document, they have to be able to recite it. If you must make it complicated, just appoint a Supreme Court and wait a little.

A Pennsylvania Farmer in Delaware

John Dickinson

It is difficult but not impossible to have a coherent view of the mind of John Dickinson. He was seriously offended by the Townshend Acts, which he rightly perceived to be the work of a few malignant personalities in high places who were soon replaced. Later on, he refused to be troubled by the inconsequential Tea Act, which he correctly assessed as a face-saving gesture of reconciliation. Unfortunately, Dickinson could not comprehend reckless hotheads among his own neighbors, and reckless hotheads seldom comprehend the measured behavior of Quakers. In this case, for "hotheads" read "Scotch-Irish".

John Dickinson's Farmhouse

He became famous for twelve letters he meant to publish anonymously. The Letters From a Pennsylvania Farmer were written about 1768 out of resistance to the Townshend Acts. Because the three counties which were to become the State of Delaware were then still part of Pennsylvania, many school children have become understandably confused about the actual location of the man who became governor of both states, simultaneously.

The causes of the separation of the two colonies are still a little vague. The Dutch and Swedes who settled southern Delaware were not completely sympathetic with Quaker rule, which could be seen as a reaction to living here for generations before William Penn but then having the land sold out from under them. There might have been Quaker friction over slavery, just as there was with the Dutch in northern New Jersey. One theory which has considerable currency in Delaware is dissension about pacifism. On a recent visit to Dickinson's home outside Dover, a school teacher was overheard to instruct his flock that the Delawarians wanted to fight the King, but the Quakers wouldn't give them guns. "We value peace above our own safety," was the defining phrase. But that line of reasoning bumps up against Dickinson's Quaker upbringing, his ambiguity over the Declaration, and his vacillation in warfare. One would suppose the simultaneous Governor of both states would have had major influence on the separation of the two.

Dover Air Force Base

Dickinson's plantation, quite elaborately restored and displayed, is tucked behind the Dover Air Force Base. Perhaps the aircraft noise will discourage sub development in the area of Dickinson's plantation and the rural atmosphere may persist for years as a consequence. At the time of the Cuban missile crisis, your correspondent was driving past, observing the sky filled with eight-engine bombers, just circling and circling until the diplomats settled the matter. Since bombers of that sort are seldom seen around Dover, it has always been a presumption that they came from elsewhere to be refueled at Dover; but that's just a presumption.