A Patriot's History of the United States: From Columbus's Great Discovery to the War on Terror (21 page)

Like all good stories, the “Chaos and Patriots to the Rescue” interpretation of John Fiske contains several elements of truth. Certainly, Confederation governmental institutions did not provide all the answers to the new nation’s most pressing problems. And some of the story, no doubt, was driven by the partisan political viewpoint of the early historians, who tended to glorify the role of the Founders. The 1780s, in fact, witnessed a division of the early Whigs into factions that strongly disagreed over the course that the new nation should follow. Nationalists (later called Federalists) cried “anarchy,” while others (later known as Anti-Federalists or Jeffersonian Republicans) pointed to the successes of the Confederation government and noted that, among its other accomplishments, it had waged a war against—and defeated—Great Britain, the greatest military power on earth. So which historical view is correct? Although historians continue to debate the successes of the Articles of Confederation, matters become clearer if it is approached as the document it was, the first Constitution.

Even dating the Articles, though, is difficult. Although not legally adopted until 1781, Congress in fact functioned within the framework of the Articles from the time of its drafting in 1777. To make matters more complex, the First and Second Continental Congresses of 1774–76 operated under a system exactly like the one proposed in 1777; therefore, realistically, the United States was governed under the Articles of Confederation from the time of the Declaration of Independence until Washington was inaugurated as the first president of the United States under the federal Constitution in March 1788.
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While the Continental Congress developed a structure for running the colonies’ affairs during the early part of the Revolution, it remained informal until three weeks prior to the Declaration of Independence, at which time the states sought to formalize the arrangements through a government that would fight the war while simultaneously leaving to the individual states most of their powers and prerogatives. On June 12, 1776, Congress appointed a committee with one representative from each state to draft such a constitution. Headed by the “Pennsylvania Farmer,” John Dickinson, the committee one month later presented a draft of the Articles of Confederation (given its name by another committee member, Benjamin Franklin).

Objections to the new plan surfaced quickly, and immediately drifted into territory that many delegates had avoided, the issue of slavery. The heavily populated areas protested the fact that each state had an equal vote in the Congress (akin to today’s United States Senate), but the more lightly populated southern colonies had different concerns involving the counting of slaves for representation in a body determined by population (such as today’s House of Representatives). Perhaps more important at the time, however, the states disagreed over what is often referred to as public domain. Several of the thirteen states possessed sea-to-sea charters and claimed lands within the parallels stretching from the Atlantic to the Pacific Oceans. These “landed” states (Virginia, the Carolinas, Georgia, and others) were opposed by “landless” states (Maryland, Delaware, and New Jersey), which insisted that the landed states relinquish all their claims west of the Appalachian crest to the Confederation as a whole. Ultimately, the parties agreed to postpone the discussion until the ratification of the Articles of Confederation in 1781, but it raised the question of charters and grants in a broad sense. Was a charter from the king an inviolable contract? If so, did England’s grip on the colonies remain, even after independence? If not, were all pre-Independence contracts null and void? And if such contracts were void, what did that say about property rights—that they only existed after the new nation was born?

Congress, meanwhile, continued to operate under the terms of the unratified Articles throughout the 1776–78 period, becoming one of the most successful Revolutionary legislatures in the history of Western civilization. In retrospect, the Articles created a remarkably weak central government, precisely because that was what the radical Whigs wanted. Not surprisingly, the Whigs who had battled royal governors and a king for seven years did not leap to place power in a new chief executive in 1777, and the same logic applied to the courts, which Whigs assumed functioned best at the state, not national, level. There was provision in the Articles for congressional litigation of interstate disputes, but it proved ineffective.

That left only the legislative branch of government at the national level, which was exactly how the Whigs wanted it. Their definition of federalism differed significantly from the one taught in a modern political science class. Federalism meant a system of parallel governments—state, local, and national—each with its specified powers, but sovereignty ultimately rested in the states and, by implication, the people themselves. Whigs saw this as completely different from “nationalism,” which divided power among the same three levels (state, local, and national) but with the national government retaining the ultimate authority. This latter model appeared after the federal Constitution of 1787, but a decade earlier, anyone who called himself a Federalist embraced the decentralized Confederation model, not that of a sovereign centralized state. In this way, the Articles preceded or, more appropriately, instigated, a raucous debate over the federalism of the American Revolution.

After independence, delegates to the Congress changed the name of that body from Continental Congress to Confederation Congress. The number of delegates each state sent had varied throughout the war, from two to seven per state, although each state retained one vote, cast according to a majority of its congressmen. This aspect of the Confederation seemed to lend credibility to the argument that the nation was merely an affiliation of
states,
not a unified American
people.
But other sections appeared to operate on different assumptions. A seven-state majority could pass most laws, but only a nine-state vote could declare war and ratify treaties, clauses that challenged the contention that the states were sovereign. After all, if states were sovereign, how could even a vote of twelve of them, let alone nine, commit all to a war? The schizophrenic nature of some of these provisions came to a head in the amendment clause, where thirteen votes—unanimous agreement—were needed to amend the Articles themselves. Given the nature of Revolutionary state politics, this stipulation rendered certain provisions of the Articles, for all intents and purposes, invulnerable to the amendment process.

Congressmen wrote all the national laws then executed them through a series of congressional committees, including foreign affairs, war, finance, post office, and so on. Congress possessed limited fundamental powers. Only Congress could conduct diplomacy, make treaties, and declare war; it could coin and borrow money, deliver mail through a national post office, and set a uniform standard of weights and measures. As part of its diplomatic charge, Congress dealt with the Indian tribes, negotiated treaties with them, and created a national Indian policy. And, when a national domain came into being in 1781, Congress had exclusive charge to legislate policies for land sales and territorial government (as it turned out, one of its most important powers).

These powers put Congress on a sound footing, but in true Whig fashion, the Articles of Confederation saved many important prerogatives for the states and the people. For example, Congress could only requisition money and soldiers from the states, thus leaving true taxation and military power at the local level. This taxation provision meant that Congress could not regulate commerce through import and export duties. So the Confederation Congress was a true Whig government—which had its economic and military arm tied behind its back. As Article 2 of the Articles of Confederation stated clearly (and the Tenth Amendment to the Constitution would later reiterate), “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

The New State Constitutions

Meanwhile, the states had simultaneously developed their own constitutions, claiming state sovereignty over the national Congress in many matters. During the years immediately following the Declaration of Independence, eleven of the thirteen states drafted and ratified new constitutions. In nearly all cases, radicals squared off against moderates, with the radicals carrying the day. State constitution making is a complex subject, with variations spanning the thirteen new American states. Yet certain patterns emerged: all of the constitution makers acknowledged the almost sacred nature of writing constitutions and sharply differentiated that process from that of merely passing legislation. Moreover, most of the new constitutions showed marked radical Whig tendencies, including written bills of rights, and institutionalized broad suffrage for white males. They fostered republicanism through direct representation, and provided for separation of power between executive, legislative, and judicial branches, but not “balance” of power. Indeed, the thirteen state governments, with notable exceptions, severely limited the executive and judicial branches of government. The result was that there were smaller state versions of the national model: strong, legislative government with important but less powerful judicial and executive components.
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Once again, the drafters all accepted the premise that their constitutions should appear in concise written form. They also agreed that a crucial difference between constitutional law and mere statute law existed. Constitutional law stood as close to natural law (God’s law) as mere mortals could possibly place it. In this the drafters inherently sided with classical thinkers like Aristotle over modernists like Thomas Hobbes: the former all held that government was natural, even to the point of being a spiritual exercise, whereas the latter held that the state was artificial. Thus, Jefferson, one of the most vocal advocates of small government, wrote in the Declaration that after altering or abolishing government, it is the “right” of the people to “institute new Government.” By siding with the classical thinkers, Americans avoided some of the assumptions that weakened European constitutions where the “artificiality” model dominated (think of post–World War II France, with its twenty-four governments in twelve years). Consequently, the natural basis of constitutional law made it
fundamental
law, which positioned it much higher than statute law. Thus, constitutions must, whenever possible, be drafted and ratified by special bodies—constitutional conventions—not merely state legislatures, and ultimately nine of the eleven new constitutions were drafted and appeared in this manner.

The state constitutions emerged during the most radical years of Revolutionary political thought, and most of them reflect that radicalism, a point most noticeable in the constitutions’ tendencies to hedge and restrain their executives. After 1776, for example, governors could no longer introduce legislation, convene or adjourn assemblies, command state militia, pardon criminals, or veto bills. Pennsylvania axed the governorship from its constitution, allowing the legislature to serve in executive capacity. The judiciary suffered similar checks on its powers. Legislators and voters selected judges to serve set terms in office, or even on the basis of “good behavior.” Judges’ salaries were fixed by the legislatures, which also retained the right to impeach or recall magistrates, and no judge had the prerogative for judicial review or determining constitutionality. Like the executive, the judiciary in most states remained a creature of the legislature.

Nearly all of the new constitutions expanded suffrage, republicanism, and the civil liberties of the constituents. Eight constitutions contained bills of rights, delineating the terms of freedom of speech and religion, citizen protections from the military, the right to keep and bear arms, and components of due process. Taxpayers saw their enfranchisement expanded to the extent that Rhode Island granted universal white male suffrage. Representation was proportional; state capitals moved westward to better serve growing frontier constituents; legislators stood for annual election, and voters kept them in check through term limits and recall. Three states eliminated their upper legislative house, but in all other cases the lower house retained more power than the upper, controlling each state’s economic and military policies as well as important judicial and executive powers. Pennsylvania and Massachusetts represented two opposite extremes of state constitution making. Pennsylvania eliminated the governorship and the upper house of the legislature. “We…never shall have a hereditary aristocracy,” wrote one Pennsylvania Whig in opposition to a state senate.

God and the Americans

Few issues have been more mischaracterized than religion, and the government’s attitude toward religion, in the early Republic. Modern Americans readily cite the “separation of church and state,” a phrase that does not appear in the Constitution, yet is a concept that has become a guiding force in the disestablishment of religion in America. Most settlers had come to America with the quest for religious freedom constituting an important, if not
the
most important, goal of their journey. Maryland was a Catholic state; Pennsylvania, a Quaker state; Massachusetts, a Puritan state; and so on. But when Thomas Jefferson penned Virginia’sStatute for Religious Freedom (enacted 1786), the state’s relationship to religion seemed to change. Or did it?

Jefferson wrote the Virginia sabbath law, as well as ordinances sanctioning public days of prayer and fasting and even incorporated some of the Levitical code into the state’s marriage laws. In 1784, however, controversy arose over the incorporation of the Protestant Episcopal Church, with Baptists and Presbyterians complaining that the act unfairly bound church and state. The matter, along with some related issues, came before several courts, which by 1804 had led the legislature to refuse petitions for incorporation by churches or other religious bodies.