Articles of Confederation

When viewed in this way the Articles of Confederation, which became effective in 1781, made sense. They represented at that time the best thinking in the colonies about how to organize a national government based on a written document and spread over a large geographic area.

Were they a true constitution? That all depends. If we mean that they sketched a basic frame of government that took into account the relationship of the states to the national government, then they were. But if we mean by the term constitution an organic form of government founded on the consent of the people and characterized by separation of powers, then they were not. The Articles derived their existence directly from the states, and the states, in turn, made claim to their own sovereignty based on the will of the people that resided within their boundaries.

The Articles were exactly what they said they were: a confederation of sovereign states. They indeed provided for a "president" and a "judiciary" to hear cases arising out of the wartime capture of vessels, but neither of these offices was independent (even, for that matter, identifiable) to the same extent as their counterparts in the states. Nor, moreover, was Congress either sovereign, as Parliament had been, or a true lawmaking body, as were state legislatures. Congress, according to the Articles, could make resolutions, determinations, and regulations, but not laws. Only the states, in which the people as constituent power were represented, had legislatures--and executive and judicial establishments as well. Questions of naturalization, too, were left entirely to the states. The Articles indeed permited Congress to carry out certain activities that Parliament had exercised under the old regime, such as making war, sending and receiving ambassadors, and coining money, but the lawmaking function resided squarely in the states.

The Articles reflected how most American revolutionaries thought that the empire should have been organized all along. There was no provision for a bill of rights in them because they posed no threat to individual liberty, the protection of which, in any case, properly belonged in republican theory to the states. Compared with the Constitution of 1787, the Articles were weak. But that is what was expected of them; the patriots wanted the rule of law to flow from the bottom up, not the top down.

The Excesses of State Power

In hindsight the articles seem like a way station on the road to the Constitution. That perspective lends an unfortunate air of inevitability to the way the "critical period" culminated in the Philadelphia convention in 1787. The Treaty of Paris in 1783 broke the binding ties of wartime cooperation among the states, leaving each of them to pursue their interests, both on the North American continent and in the larger world. Events and ideas, much as they had in 1761 and 1776, again began to accumulate in patterns that divided Americans in their thinking about the nature of public law, the scope of republican government, and the meaning of federalism.

A crisis indeed existed, but it was not one of material condition, at least not altogether. Most parts of the country rebounded nicely from the postwar recession caused by the rapid resumption of large-scale imports from England. Important problems nonetheless remained, most notably confusion about the jurisdiction of the states

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over interstate matters, internal challenges to existing state authority, and growing threats of disunion.

The new republican governments encountered numerous challenges. Separatists in Massachusetts schemed to break off and create the new states of Maine and Nantucket, settlers in the Wyoming Valley wanted their own state outside of Pennsylvania, and proponents of a "lost state" of Franklin sought independence from North Carolina and possible alliance with Spain or Britain.

There was also substantial internal upheaval. Indebted farmers well remembered the value of revolutionary mob action, and they rekindled the tradition of directly challenging the rule of law in most of the new states. In central and western Massachusetts, for example, Captain Daniel Shays and an army of debtors symbolized the crisis of republican government when they closed the local courts. Popular sovereignty seemed out of control, and the "national" government of the Articles stood powerless to assist the states. "There are combustibles in every State," George Washington wrote while the outcome of Shays's Rebellion was unclear, "which a spark might set fire to." Washington's solution was simple: "a prompt disposition to support and give energy to the federal system." ⁴⁵

These pressures rendered inviable the idea that the Articles could be gradually reformed through the adoption of carefully drawn individual amendments. ⁴⁶ Some persons did react to Shays's Rebellion by demanding a return to monarchy, but most influential leaders agreed with Washington that the solution lay properly with a stronger national government. For most Americans, as well, the solution was not to undo republican government in the states, but to extend its principles to the national level. What became obvious was that the existing theory of American public law, as youthful as it was, had to be further elaborated. The delegates to the Philadelphia convention in 1787 provided just such a reprise through a federal Constitution that gave truly national implications to Tom Paine's observation that in America "the law has become king."

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4
Law, Politics, and the Rise of the American Legal System

The Postrevolutionary Struggle over Law and Politics

Public law in the United States from 1787 to 1815 involved an extended struggle over the proper relationship between law and politics. All Americans could agree with the editor of a Boston newspaper who wrote in 1804 that "that which is not regulated by law must depend on the arbitrary will of the rulers, which would put an end to civil society." ¹ They disagreed, however, about the content and the implementation of the rule of law.

Their differences stemmed from competing visions of the proper role of government in an emerging capitalist economy. Nationalist exponents of commerce and manufacturing, principally in the northern states, clashed with representatives from agrarian regions, generally in the southern states. The former emerged as the Federalist party; the latter became, by about 1800, the Jeffersonian Republican party. Neither accepted what subsequently became a cachet of American politics: the legitimacy of opposition by the party out of power to the government and its leaders. This fear of opposition owed something to the lessons of English dissenters who had taught that factions were destructive of republican government. It also derived from a sense of insecurity nurtured by almost constant conflict between the world's two major powers, England and France. Under such circumstances Federalists resorted to the power of the state to impose their vision of the public good. Their actions stimulated not only opposition but a sustained debate over critical legal issues raised by it; among them were the organization and independence of the judiciary, the legitimacy of the common law, the limits of popular dissent, and the definition of treason.

By the end of these two decades, the moderate Jeffersonian opposition had itself become the political majority, and in that position it had to fit its principles to the

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exigencies of governing, in both the federal and the state governments. The resolution it struck between the competing values of law and politics involved nothing less than the framing of the nineteenth-century legal system.

Date: 2015-01-29; view: 763