Conceived in Liberty (248 page)

The Articles of Confederation were completed by Congress on November 15, 1777, and submitted to the several states for the required unanimous ratification. While the radicals had succeeded in pulling much of the centralist teeth, the Articles were still a momentous step from the loose but effective unity of the original Continental Congress to the creation of a powerful new central government. To that extent, they were an important victory for conservatism and centralization, and proved to be a halfway house on the road to the Constitution.

The first few articles of the “Articles of Confederation and Perpetual Union” were sensible agreements among the several states, rather than the erection of a central government. Thus, apart from Article Two’s declaration of state sovereignty and reserved powers to the states, the states pledged mutual defense, mutual privileges and immunities among the citizens of the respective states, and full faith and credit to the acts and judicial proceedings of the other states. Thereafter central power began to assert itself. While the prohibition on any state’s engaging in its own foreign diplomacy, treaty or war seemed sensible, the prohibition against any state’s having an army or navy not approved by Congress was an important seizure of the power of force by Congress. So too was the compulsion on each state to maintain a militia, and the requirement that
each state supply revenue to Congress in proportion to its land values. (Congress, however, had to rely on the states to meet these requisitions.) So also was the power vested in Congress to be the final court of appeal on all boundary or jurisdictional disputes between states or land grant disputes involving two or more states. Moreover, Congress acquired the sole power to regulate the alloy and weight of all coins, whether minted by itself or the states; to establish post offices and exact postage; and to appoint all naval officers and all army officers over the rank of colonel, and to direct their forces. Congress also had the power to requisition soldiers from the states in proportion to the number of their
white
inhabitants (thus privileging slave states, who did not have to supply soldiers in proportion to their slaves), and to borrow money or emit bills of credit (i.e., paper money).

A key clause, Article Twelve, provided that all previous debts and bills of credit emitted by Congress would be deemed payable by the new government, thus setting a precedent for a compulsory visiting of the debts of the past upon future generations. The union, too, was made compulsorily perpetual, with
unanimity
of every state legislature, as well as approval by Congress, required for any alteration of the Articles of Confederation.

For such fundamental decisions as declarations of war, issue of letters of marque (also reserved solely to Congress), making treaties, coining or regulating money, voting common expenses, issuing bills, borrowing money, or raising armed forces, the vote of nine states, voting equally by states was required. This provision completely abandoned the requirement of unanimity which had been needed to declare independence or to ratify the Articles themselves. Unanimity would now only be needed to change the Articles.

Each delegate to Congress was to be elected annually by the state legislatures. The democratic and libertarian belief in rotation in office as a vital check upon the building up of entrenched political power was represented in the prohibition, in the Articles, against any Congressional delegate serving for more than three years out of any six. Moreover, he was prohibited from holding any central government office while serving as delegate.

The Articles were not exactly received with huzzahs; rather, they were greeted quietly and dutifully, as a needed part of the war effort against Britain. One of the keenest critiques of the Articles, as might be expected, came from Thomas Burke, who warned that, under cover of the war emergency, eager power-seekers were trying to impose a central government upon the states. He urged the North Carolina legislature not to ratify: not only no confederation, but no Congress, would be necessary after the war; and, in any case, each state must have the right to control
all the soldiers within its own territory. In response, the North Carolina legislature, controlled by radicals, expressed strong criticism of the excessive central power over the states and ratified only part of the Articles; it was only at the end of April 1778 that North Carolina consented to ratify in toto.

In the South Carolina Assembly the drive against the Articles was led by the radical leader, William Henry Drayton. He warned that the central government would seize effective sovereignty under the Articles, and attacked their vagueness and ambiguity. He also warned that constitutional precision was vital, for otherwise a consideration of “the spirit of the laws” would provide a ready route for Congressional assumption of power in the future. He effectively quoted the great Italian jurist Beccaria to the effect that the “spirit” of the law would be found in the necessarily fluctuating and subjective interpretations, and in the whims and crotchets and interests of the Congressmen and other concerned people at the time. He also attacked the abandonment of unanimity, and proposed a vote of at least eleven states to be needed for fundamental decisions. South Carolina’s ratification included numerous amendments restricting central power, including denial of Congressional jurisdiction over interstate disputes. However, South Carolina, too, finally ratified the Articles in early 1778.

In New Hampshire also, the Articles were under heavy fire from the left. Town meetings considered the proposal throughout the state, and there was general dissatisfaction at real estate values as the basis of taxation. Some towns also urged that a declaration of war be required to be unanimous among the states. However, the New Hampshire legislature passively ratified the Articles in March 1778. Massachusetts followed a similar procedure. The towns suggested many valuable changes restricting central power, among them a required vote of eleven states for important decisions, and requiring that decisions on war and peace be left to the people of the states rather than to Congress. And yet the Massachusetts General Court meekly ratified the proposed Articles of Confederation.

Connecticut offered an amendment to the Articles prohibiting any standing army under Congress in time of peace, and New Jersey partly agreed. But again, these states soon fell into line.

But while all other states soon ratified (New Jersey and Delaware at the turn of 1778), Maryland, run by a tightly knit little oligarchy of land speculators, persisted in holding out against ratification unless the western lands were nationalized. As a consequence, the Articles of Confederation were not to be ratified and go into effect until 1781, when the Revolutionary War would be all but over.

*
Jensen expresses surprise that such centralist leaders as Robert Morris, James Duane, and William Duer supported this “states’ rights” amendment. Rather than lamely trying to explain this vote as a concession to New York and Pennsylvania radicals, however, it should be clear that these archconservatives did not at this point wish to give up the power of the states to levy tariffs. Contrary to Jensen’s implicit assumption here, “merchants” are not inveterate opponents of protective tariffs. The Philadelphia and New York oligarchs desired a nationwide tariff, and there was no reason at this particular point—certainly none deriving from formal nationalist principles—for them to abandon the power of state tariffs as well. Cf. Jensen,
Articles of Confederation,
p. 178.

Certainly the most exciting political event in the years after the Declaration of Independence was the triumph of the radicals in the Pennsylvania Constitution of 1776. Pennsylvania’s proprietary status had allowed its colonial assembly to retain its dominance even after war began; its conservative opposition to independence then forced the independence movement to polarize into a truly radical opposition. In the provincial conference of June 1776, this opposition had created a dual government in scornful defiance of the moribund assembly, and had declared independence. The conference organized a provincial convention to frame a new constitution for Pennsylvania, and this convention was weighted heavily in favor of representation from the west, in contrast to the previous weighting in favor of the east. It also greatly broadened the suffrage, giving the vote to all taxpaying adult military associators who would take a loyalty oath to the rebel cause.

The Pennsylvania convention which met on July 17, 1776, was heavily dominated by the radicals from Philadelphia and from the west. Benjamin Franklin was named president of the convention, but he was well content to serve as figurehead and took no interest in state politics at the time, preferring to work with the conservatives on the national scene. The major drafters of the Pennsylvania Constitution were the libertarian Prof. James Cannon of Philadelphia College, his fellow Philadelphia mathematician, David Rittenhouse, and the leader of the Philadelphia mechanics, Timothy Matlack. Not delegates to the convention but highly influential behind the scenes were Dr. Thomas Young, formerly of Massachusetts and ideological mentor of Ethan Allen, and Philadelphia merchant and
jurist George Bryan. The mass of the delegates were far more broadly based than American legislators had ever been; instead of dutifully electing their betters to office, the masses from among farmers and artisans had risen up to elect delegates of their own.

In the Pennsylvania constitution, the radical leadership and their new mass base created a remarkably democratic instrument which quickly became the object of hate and alarm among conservatives of every stamp throughout the country. Its essence was the radicals’ realization that the inevitable thrust of despotism comes from entrenched oligarchy, and that therefore liberty is best assured by checking and scotching that oligarchy before it has a chance to grow. Conservative urgings of bicameralism were swept aside, and a single-house legislature created with no oligarchical upper house allowed. Executive tyranny was checked in advance by creating a plural executive, a council elected in rotation and removable at any time by the elected assembly. The president of this council, elected by joint vote of council and assembly, was only the presiding officer of the council with no real executive power. Furthermore, the council itself was strictly subordinate to the assembly and had no veto power over legislation. Plural officeholding was totally forbidden. Judicial despotism was prevented by making the Supreme Court judges
not
life judges guaranteed tenure on good behavior, but elected by the council for seven-year terms and removable by the assembly at any time for misbehavior. Military despotism was checked by allowing the state militia to select its own officers of colonel and below, higher officers to be selected by the assembly. Cannon and his Philadelphia Committee of Privates lost their fight, however, to make
all
militia officers electable by their men.

Contrary to many interpretations of the Pennsylvania constitution, the aim of the framers was
not
to erect unchecked rule by the one-house legislature. On the contrary, its power was also to be severely checked in advance. Thus, state government tyranny over local affairs was prevented by making all local officials elected by their local community. And no bill was to become law unless passed by
two
successive assemblies, so as to test the popular will before any measure could be finally passed. To insure rotation in office as a check upon entrenched power, representatives in the assembly could not serve more than four years out of every seven. An especially interesting check upon the legislature was to be a council of censors, whose job would be to meet every seven years to examine whether any part of government had exceeded its constitutional power (i.e., to function perhaps as a kind of judicial review), and to call a new constitutional convention to amend the old.

The constitutional suffrage continued along lines similar to the voting for the convention itself. Suffrage was broadened by extending it to all patriotic taxpayers and sons of freeholders. While overrepresentation of
the west was to continue for two years, the constitution recognized that representation in proportion to the number of voters (in this case taxables) “is the only principle which... can secure liberty” and thus dared to undercut the radical voting base itself on behalf of radical principle, establishing such proportional representation by 1778. One undemocratic feature confined to the freeholders the nomination of two choices for each post of justice of the peace, sheriff and coroner, one of whom would be chosen by the state council. The constitution-makers inserted, again over Cannon’s objections, a Christian oath for holding office—an oath that unusually allowed Roman Catholics to accept office. Two particularly libertarian clauses in the constitution were the abolition of imprisonment for debt (except in cases of fraud) and the allowing of the right to vote to all foreigners resident more than a year in the state, which served to enfranchise many German immigrants. “Excessive” bail was prohibited, and punishments were to be reduced to become more proportionate to the crimes. In addition, jails were to be made places of forced labor where the criminals could be made to work, partially to repair the injuries they had committed. Perpetual entails of estates—an ancient feudal abuse of property—were prohibited, and a free press guaranteed to everyone.

The Pennsylvania constitution also included a comprehensive “declaration” or bill of rights. This included the bulk of the model Virginia Bill of Rights, for example, natural rights, power in the people, right of abolition of government, right of jury trial, liberty except by process of law, prohibition of general warrants, and prohibition of standing armies. To these, Pennsylvania added many other highly libertarian clauses. One held “that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences,” and that therefore there must be no compulsory religious establishment or abridgement of rights on account of religion—in short, full freedom of religion. A second stated “that the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore, the freedom of press ought not to be restrained.” A third clause asserted the “natural inherent right” of all men to emigrate to a state that will receive them, or to form a new state on vacant lands. Another article upheld the right of the people to assemble and to petition for redress of grievances.