Vices of the Articles of Confederation

 

 

On November 15, 1777, two hundred and forty-five years ago, the Congress approved the Article of Confederation and sends them to the States.  The Articles would not go into effect until March 1, 1781, after being ratified by all of the 13 States.  It is interesting to note, and a truly remarkable fact, that the American Revolution was almost entirely fought with the government of the Union, what little there was of it, being the temporary expedient of the Second Continental Congress.

In April 1787 James Madison wrote a very interesting document outlining the vices of the political system of the United States under the Articles of Confederation.  It is fascinating to read in light of the Constitutional Convention later that year, and also in light of our experience with the Constitution for over two centuries:

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Marbury v. Madison

A dramatization of the events surrounding the case of Marbury v. Madison.  Part of the Equal Justice Under Law series that ran in 1977 on PBS.

William Marbury was one of the “Midnight Judges” appointed by President Adams in the waning hours of his administration, 16 Federal district judges and 42 justices of the peace, all members of Adams’ Federalist party.  The Senate, still controlled by the Federalists, approved his appointments en masse the next day on March 4, 1801, the same day Thomas Jefferson was sworn in.  Acting Secretary of State John Marshall, who was also the newly appointed Chief Justice of the Supreme Court, sent out the commissions to be delivered to the newly appointed judges and justices of the peace.  Not all could be delivered prior to Jefferson assuming office, and he ordered Levi Lincoln, Attorney General and Acting Secretary of State pending the arrival of James Madison in Washington, not to deliver the remaining commissions.

Marbury was among the justices of the peace who did not receive their commissions.  He petitioned the Supreme Court for a writ of mandamus requiring Secretary of State James Madison to give him his commission.

In a 4-0 decision John Marshall, who should have recused himself from this case due to his involvement with the commissions, gave his enemy Jefferson a short term tactical victory and a long term strategic defeat.  He ruled that Marbury had a right to the commission, but that the Supreme Court lacked the legal authority to order Madison to give him the commission.  The Judiciary Act of 1789 had given to the Supreme Court the power to order writs of mandamus.  Marshall found that Congress could not enlarge the original jurisdiction that the Constitution gave to the Supreme Court and that thus this provision in the Judiciary Act was unconstitutional and that the Court lacked the power to grant such a writ as a matter of original jurisdiction.

Thus did the Court grant itself the key power of judicial review, a power nowhere granted in the Constitution, although some members of the Constitutional Convention assumed that the federal judges would have the power to declare null and void an unconstitutional act.  Hamilton argued in Federalist 78 that the Federal courts would have the power of judicial review.

It would be over a half century before the Supreme Court would strike down another act of Congress, in the infamous case of Dred Scott v. Sanford.  However, the Court was not reluctant during that period to use judicial review to strike down state statutes that they ruled ran afoul of the Constitution.

June 17, 1812: Congress Declares War on Great Britain

On June 18, 1812, President James Madison signed the declaration of war passed by Congress on June 17, 1812, starting the War of 1812.  I think it is safe to say that rarely has the United States gone to war more ill-prepared than in 1812, with an Army of 7,000 men and a Navy with 12 combat vessels, which is odd considering that there was no precipitating crisis that mandated a declaration of war at the time.  The United States could have prepared for the conflict and then declared war, but no such pre-war preparation occurred.

The vote totals in Congress, in the House 79-49 and in the Senate 19-13, indicated that the war was largely at the desire of one political party, the Jeffersonian Republicans, and opposed by the Federalists.  The opposition of the Federalists would continue throughout the war, and the conflict would be bitterly divisive in the United States.

The whole undertaking has a fairly surreal quality in retrospect, with the Madison administration, propelled by the War Hawks in Congress, undertaking a war that the President himself thought unwise and ill-considered against the mightiest Empire in the world.

Here is the text of the war message sent by President Madison on June 1, and which served as the basis for the declaration of war:

Adams v. Jefferson: the Necessity of Government

A debate between Adams and Jefferson from the John Adams mini-series on the necessity of a written constitution.  I am all on the side of Adams.  Putting one’s faith in the good sense and decency of people in general, and being cavalier about political arrangements as to government, is a short route to chaos as History woefully tells us.  Jefferson’s views on this topic were tellingly set forth in a letter to William Smith on November 13, 1787:

God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. … What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

Jefferson, for a man who did not spend a single day in the Continental Army during the Revolution, was quite free in his talk about bloodshed.  Most of the Founding Fathers, including Adams, viewed the misery and the blood of the Revolution as a regrettable necessity in the setting up of a new nation, and dreaded a repetition of such a conflict.  Not so Jefferson who seemed to view such conflict as a necessary and normal part of a free society.  Fortunately, heads wiser than Jefferson’s helped frame an enduring Constitution.  James Madison, ironically the closest political associate of Jefferson throughout most of Jefferson’s later political career, summed up the necessity of government well in Federalist 51:

Federalist 63 – Madison

In Federalist 63, James Madison picks up where he left off in Federalist 62 to discuss the Senate. At the outset of the essay he continues to argue that the Senate would provide a form of stability in government that would be reassuring to foreign powers. Moreover, the Senate, with its longer tenure, would be a stabilizing force in the national character.

Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.

He proceeds to this next point, and in some ways it is a bit of a paradox, as Madison himself admits:

I add, as a sixth defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.

This is paradoxical because the Senate – due to the nature of elections and the length of tenure – would seem to be the anti-democratic institution, yet Madison is here arguing it would be more responsible to the people. But note he says responsible, not responsive. In fact it is its non-responsiveness that makes it, paradoxically, more responsible.

Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.

The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.

The next argument on this point is yet another fundamental revelation of Madison’s political philosophy.

To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

In order for democracy to survive there needs to be an element of the constitution checking the democratic impulse. In some ways this almost sounds a bit like Rousseau and his famous declaration that the the people “will forced to be free” under his social contract. This is perhaps not so cynical, and it echoes a recurrent theme in Madison’s writings, namely, that the momentary will of the majority is one the same majority may come to regret after a moment’s reflection. It would therefore be beneficial to have an institution which existed to curb the spontaneous outburst of the democratic will. Over time, if the popular will remains as it had been, then the Senate will reflect this popular appetetite,  but only after sufficient time has passed.

In the next paragraph Madison has to answer himself in order to justify this viewpoint.

It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.

This is another recurring theme. Sure an extended republic, as advocated in Federalist 10, provides a mechansim for curbing violent passions, but auxiliary precautions are needed. It is not enough to trust the nature of the extended republic to provide safeguards against democratic exuberance; rather, other institutional mechansisms will also be needed.

Madison proceeds to outline how all historical republics had a Senate, and how these institutions are relevant to the American case. He then answers the charge that the Senate would become an aristocratic form of tyranny by first noting that “liberty may be endangered by the abuses of liberty as well as by the abuses of power.” He then provides a more substantive response:

Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?

It is check upon check upon check. In order for the Senate to become corrupted, the state legislatures themselves would have to become corrupted. In other words, unless every single other institution becomes corrupted, there is little or no chance of the Senate becoming corrupted. Thisis a seemingly endless labyrinth of institutional safeguards, combined with the federlist nature of the government and the extended republic, all meant to protect liberty from itself.

Federalist 62 – Madison

If you’re keeping score at home, yes I am skipping ahead. It’s not that Federalists 58-61 are not unimportant, but they cover a lot of the same ground about the manner and place of elections. I would like to move ahead to slightly meatier territory.

With Federalist 62 Publius (here Madison) turns his attention to the Senate. Madison first addresses the qualifications of a Senator as distinguished from a Representative, noting a Senator must be at least 30 years of age (25 for a Representative) and at least nine years a citizen versus seven for a Representative. This added age and residency reflects the weightier position, which generally requires more knowledge and a greater amount of time apart from foreign influence.

With regards to the mode of election, Madison states, “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” This one sentence provides a crucial bit of understanding of the Federalist mindset. The lofitier stature of the Senate necessitates an indirect mode of election. This mode of election lessens the democratic nature of the Senate, while simultaneously providing a greater say to the states in the representation of Congress. This is a critical element in the federalist design, which would be undermined later by passage of the 17th Amendment.

Madison then turns to the equal representation of the Senate. Here he essentially concedes this is a political compromise and not necessarily a reflection of deeper political thought:

Federalist 57 – Madison

Madison picks up where he left last time in Federalist 57 to defend the makeup of the House against charges it would elevate the few at the expense of the many. He offers up a five-fold argument, but first I wanted to examine this paragraph.

The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.

This sums up as well as anything Madison’s philosophy of governance. What undergirded Madison’s faith in the constitution and in the republic – likely even moreso than even Hamilton – was the expectation that virtuous citizens would generally be at the helm. These individuals would be not be motivated by self-interest, and would take a wide-ranging view of the common good. The constitution, he thought, was the best structural mechanism by which to ensure such individuals would be placed in positions of power. This assumption is a core one for Madison, and informs most of his work.

Now he’s not a naif. Federalist 51 aptly demonstrates his non-idealistic view of human nature. Enlightened statesman will not always be at the helm. This constitution places checks and balances to mange the ill effects of those circumstances. That said, Madison does have faith that, in the main, representatives will not be guided by ulterior motives.

Now let’s quickly examine Madison’s five main points.

Federalist 56 – Madison

The previous paper covered in this series – and I’m sure you all remember back four years ago when I discussed Federalist 55 – dealt with the size of the House of Representatives. Madison continued on the theme in the 56th Federalist Paper. Once again Madison was at pains to strike a careful balance, arguing that the House was large enough to accomodate representatives who would have adequate knowledge of their constituency, but not so large as to become an over-crowded mess, unable to accomplish anything ofg substance.

At the time of the Constitution’s ratification, a House district was designed to encompass approximately 30,000 people. Madison thinks this is a suitable size for a representative to understand the complexities of the district he represents. As he puts it:

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.

The implicit argument is the purview of the federal government will be quite limited, therefore a representative need only acquite expertise in subject matters that will directly impact his constituents. The representative did not need to be on a first-name basis with each of his constituents, nor did he need to be aware of every little bit of minutiae affecting them. He had to attain a general knowledge of those matters, and only those matters in which the federal government might have a say over the lives of the people he represents. Therefore he would not be spread too thin according to the original constitutional design.

So what are the areas of particular interest?

What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia.

A good representative will have to have some particular insight when it comes to regulation and taxation, but Madison did not think this required each state to have more than a handful of representatives, depending of course on the size of the state.

As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it?

Madison adds that the national legislature will include a number of individuals who will have already served as state legislators, and therefore they will be able to convey local information into national debates over legislation. As for the militia, differences in discipline may differ from state-to-state, but will not differ within each state, so a representative does need to possess a specialized understanding of local circumstances on this subject.

In the next paragraph, Madison asserts that the intra-state similarities justify a smaller number of representatives. Districts will not vary significantly. Over time states will diversify, growing larger in population and in the types of people occupying it. The constitution addresses this by granting an increase in the number of representatives as the population grows and becomes more diffuse.

Whether Madison’s logic still holds 238 years later considering the manifold increase in both the issues over which the federal government claims dominion and in the population, where average district sizes are now over 20 times greater than at the time of ratification, is a subject worthy of debate. In a sense the logic still holds, even if the federal government oversees many more matters of interest, and even if the districts are much larger. Districts may be larger in population size, but a representative’s ability to gather information is also dramatically improved. And though we lament the decline in the number of “swing” districts, it does mean a representative is likely reflecting the will of most of his or her constituents, if nothing else.

-Paul

 

His Rotundity

To many Americans it often seems that Congress wastes an inordinate amount of time debating on trivialities.  It is at least an old tradition.  The Senate spent a month in 1789 debating what the title of the President should be.  Washington during the Revolution had often been known informally as His Excellency, but at that time that was the common title for governors of states.  Vice-President John Adams thought that the President needed a royal, or at least a  princely, title  to sustain the dignity of the office.  He suggested such titles as “His Highness” and “His Benign Highness” demonstrating once again how tone deaf to public opinion he tended to be, the American people post Revolution being decidedly anti-monarchical.  Eventually a Senate committee approved the title “His Highness, the President of the United States, and the Protector of Their Liberties”.

Secretary of State Thomas Jefferson was aghast at the whole business and recalled Benjamin Franklin’s description of Adams as a man who means well for his country, is always an honest man, sometimes a wise one, and who,  some times, and in some things, is absolutely out of his senses.

Washington initially favored the unwieldy formulation of “His High Mightiness, the President of the United States and Protector of Their Liberties,” but was aghast at the criticism that all of this smacked of monarchy, and eagerly agreed to the simple title of Mr. President that James Madison succeeded in having the House of Representatives approve.

Presidential Election 1812

The Presidential election in 1812 was one of the more interesting in our history.  James Madison was running for re-election on the Jeffersonian Republican ticket.  Dewitt Clinton, who was simultaneously Mayor of New York and Lieutenant Governor of New York, received the nomination of a dissident faction of the Jeffersonian Republicans, along with the nomination of the dying Federalist party.