Archive for the ‘Constitutional Convention’ Category

The Defects of the Articles of Confederation, Part 11

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Human civilization is probably about 10000 years old.  It is fascinating to consider that chattel slavery has existed for 98.5% of that entire period, having ended only about 150 years ago.  While it is nothing new in the history of mankind, it is more revolting to the modern mind.  In America we continue to be preoccupied with it since American slavery was uniquely racial in its implementation.  That, combined with the fact that there are Americans still living who knew, as children, people who had been slaves, causes slavery to remain fresh in our debates.  But those among us who impute universal racism to white people would do well to remember that far more white people than black have been slaves throughout history. The enslavement of blacks began in Africa, just as the enslavement of whites originated in Greece and Rome.  Does racism exist in America?  Of course; it always has and it always will so long as people of one racial group desire to feel superior to some other.  There are and always will be a few who join the Ku Klux Klan or sympathize with them and their equivalents; there are likewise on the other side always a few who embrace Black Liberation theology and its various mutations.  I digress — our subject is the issue of slavery at the forming of the United States.

Slavery was practiced throughout the 13 colonies from the mid-1600’s onward, especially in the south.  It became apparent soon after the colonies were established that black people were better suited to the hard labor required in an agricultural economy in the sub-tropical conditions of the south.  Or at least the white people discovered that claim as a convenient excuse. In any case, many of that era believed that slavery was an efficient economic system.  Secondly, slavery was important to the British crown as a source of revenue, and was not only encouraged in the colonies, it was sometimes vigorously promoted since there was a great deal of money to be made buying/capturing slaves and selling them in the colonies once Britain obtained a lock on the slave trade in the early 1700’s.

The institution of slavery was not uniformly embraced in all the colonies.  In the north, the religious ethic rejected slavery on moral grounds, and it did not take hold there as it did in the southern colonies, where the (false) economic argument was firmly planted.  There were many attempts prior to the Revolutionary War to limit slavery in the colonies.  A few examples are as follows.

In Virginia, the state Assembly imposed a series of import duties from 1732 on the importation of slaves that nearly amounted to a prohibition (up to 40% of the slaves’ value). In 1772 the Virginia Assembly wrote to King George III, asking him, unsuccessfully, to abolish the slave trade [1]:

 “We implore your Majesty’s paternal assistance in averting a calamity of a most alarming nature.  The importation of slaves into the colonies from the coast of Africa hath long been considered a as a trade of great inhumanity, and under its present encouragement we have too much reason to fear will endanger the very existence of your Majesty’s American dominions.  We are sensible that some of your Majesty’s subjects may reap emoluments from this sort of traffic, but when we consider that it greatly retards the settlement of the colonies with more useful inhabitants and may in time have the most destructive influence, we presume to hope that the interest of the few will be disregarded when placed in competition with the security and happiness of such numbers of your Majesty’s dutiful and loyal subjects.  We therefore beseech your Majesty to remove all those restraints on your majesty’s governors in this colony which inhibit their assenting to such laws as might check so pernicious a consequence.”

The Rhode Island legislature passed a law in 1774 whereby all slaves brought into state by citizens of other states were to be free, except those passing through with their master; also, Rhode Island citizens bringing in slaves had to remove or free them in one year [2].  In Connecticut, the Assembly passed a law in 1774 stating [3] “No Indian, mulatto, or negro slave shall at any time hereafter be brought or imported into this state, by sea or land, from any place or places whatsoever, to be disposed of, left, or sold within the State.” New Jersey had attempted in 1744 and 1761 to essentially prohibit importation by imposing large import duty [4], but it was rejected by the Provincial Council as injurious to crown revenue.  In Pennsylvania, the influence of the Quakers led to the voluntary freeing of many slaves from 1725 onward [5]. Massachusetts attempted in 1774 to prohibit the importation of slaves outright [6], but this motion was rejected by Gov. Hutchinson as it would reduce revenue to the crown.

The Articles of Confederation was silent on the entire issue of slavery; each state enacted legislation as it saw fit. In 1775, slavery existed in all 13 states but there was a great deal of activity in the states toward reducing slavery from the start of the Revolution through the period of the Articles.  In 1776 Delaware prohibited further importation through a provision in its new Constitution, which read: “No person hereafter imported into this state from Africa ought to be held in slavery under any pretense whatever, and no Negro, Indian or mulatto slave ought to be brought into this state for sale from any part of the world.”  Unfortunately, free blacks were occasionally kidnapped & sold.  In 1776, Rhode Island passed legislation that made all children of slaves born in 1776 and after free; and promoted the gradual liberation of existing slaves by regulation [7]. In 1778,Virginia prohibited further importation of slaves, although probably more out of fear of a large population of slaves starting an uprising than out of widespread disapprobation of the institution itself [8]. Pennsylvania passed a law in 1780 that prohibited further importation, and made all persons born after 1 Mar 1780 servants only until age 28, after which they were then free [9].  It was not abolished outright until 1847.

Massachusetts adopted a new Constitution in 1780, the first article of which read: “All men are born free and equal, and have natural, essential, and unalienable rights; among which may be reckoned the right of enjoying, and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”  It was not intended by these words to abolish slavery, but a series of court rulings on the Constitution in 1781 and afterward serve to gradually reduce slavery; the people considered it abolished for practical purposes [10].  In 1788, importation of slaves was prohibited directly [11].

Maryland prohibited further importation in 1783, (but slavery was not abolished until 1864). New Hampshire passed a law in 1783 that was similar to the 1780 Pennsylvanialaw; in 1784,Connecticut did the same [12]. New York followed suit in 1785, except the children of slaves gained full voting rights. Starting in 1782, New Jersey freed all the slaves that had been owned by Tories [13].  In 1786 the legislature passed provisions for voluntary gradual freeing of slaves of a certain age [14]; in that same year prohibited further importation; and in 1788 also prohibited exportation [15].  Gradual mandatory emancipation did not begin until 1804, and slavery was not abolished entirely until 1846.

In 1786 the state of North Carolina imposed a 5 pound sterling duty on importation to discourage the trade.  Only in Georgia and South Carolina was the slave trade entirely unrestricted.

The weakness of the Articles of Confederation in this regard was that there was no limitation on the importation of slaves as a general rule.  It was gradually being phased out in the north, while importation continued unabated in the south.  As the debates at the Constitutional Convention got underway, it was soon apparent that many in the north would have preferred to abolish slavery entirely, but the Georgia and South Carolina delegations made it clear that they would never join the union if there was any attempt to remove slavery as an institution – it was, they believed, too important for the function of their economy [16]. This condition determined the debate, as Georgia and South Carolina were essential for the preservation of the union.  It was necessary to keep those two states in the union, since they would serve to deter a serious military threat from Spain in the south.  Secondly, if they did not join the union, it is likely they would have attempted to rejoin Great Britain in order to gain an ally in any controversy with Spain over navigation rights on theMississippi.  These two southern states were however, willing to accept the prohibition on the importation of slaves after 1808.  The provision in the U. S. Constitution reads:

[Article 1] Section 9.  The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The provision did not affect existing slaves, but it was an improvement over the Articles since it universally limited importation after 1808.  In effect, it imposed on all the states, even those where slavery was most entrenched, the same trend that had occurred in the northern states throughout the previous decade.

[1]        James Curtis Ballagh, A History of Slavery in Virginia, Baltimore: Johns Hopkins University Press, 1902, p. 22

[2]        William D. Johnston, Slavery in Rhode Island 1755 – 1776, Providence: Rhode Island Historical Society, 1894, pp. 130, 131

[3         Bernard C. Steiner, “History of Slavery in Connecticut”, Johns Hopkins University Studies in Historical and Political Science, Eleventh Series, Baltimore: The Johns Hopkins Press, September-October 1893, p. 16

[4]        Henry Scofield Cooley, “A Study of Slavery inNew Jersey”, Johns Hopkins University Studies in Historical and Political Science, Fourteenth Series, Baltimore: The Johns Hopkins Press, September-October 1896, p. 15,16

[5]        Edward Raymond Turner, The Negro in Pennsylvania: Slavery – Servitude – Freedom 1639 – 1861, Washington DC: The American Historical Association, 1911, pp. 56 – 61

[6]        George H. Moore, Notes on the History of Slavery in Massachusetts, New York: D. Appleton & Co. 1866, p. 142

[7]        op. cit., Johnston, p. 133

[8]        op. cit., Ballagh, p. 23

[9]        op. cit., Turner, pp. 77 – 79

[10]       op. cit., Moore, pp. 202 – 217

[11]       op. cit., Moore, pp. 141, 142

[12]       op. cit., Steiner, p. 30

[13]       op. cit., Cooley, p. 46

[14]       op. cit., Cooley, p. 47

[15]       op. cit., Cooley, p. 18, 19

[16]       See the text of the debates in the Constitutional Convention on 8 and 22 Aug 1787.  The primary source is Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787; With a Diary of the Debates of the Congress of the Confederation As Reported by James Madison, Philadelphia: J. B. Lippincott & Co., 1881, Vol. 5, pp . 391-394 and 457-461; see also E. D. Duvall, “Regarding the Three-Fifths Rule”, 20 Jun 2011, pp. 51-59

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The Defects of the Articles of Confederation, Part 9

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Every viable government must possess the means to fulfill its duties and to keep its promises.  A national or federal government, whether it is a republic, aristocracy, or some other, naturally has the duty to manage the nation’s defenses, engage in diplomacy, manage trade relations, and maintain a judicial system; all these must be paid for in some way or another.  In the American system, the states likewise exercise many powers for which considerable revenue is required, and so on down to the local level. Our early history instructs us on one thing in particular with regard to finances: a government must have the financial means to execute its respective powers and duties.  It cannot, in the long run, depend on another level of government for money; it will become captive to the interests and prejudices of the politicians and bureaucrats within the other government entity.  A prime example of this principle is contained in the most serious defect of the Articles of Confederation: Congress, as the only federal power, was dependent entirely on the states for revenue.  This disconnect caused a radical divergence between need and ability: Congress’ needs were great, even after the war, but the states, attending to their own problems, soon found ready excuses not to meet their financial obligations to Congress.  By the mid-1780’s, Congress had neither credit nor credibility, and the thinkers of that time realized that Congress’ lack of a revenue stream caused many other problems.  If the states were to stay together, a more consistent federal government would be required, and that government must have its own independent revenue source.

At the beginning of the Revolutionary War, Congress assumed emergency powers to manage the war effort.  Although the Articles of Confederation were proposed and debated from 1776 to 1778, they did not actually go into operation until the spring of 1781.  Congress attempted to fund the war effort prior to the implementation of the Articles by three means: borrowing, issuing its own currency, and asking requisitions from the states.  The first two will form the subject of the next essay, but the last will be considered here since it emulates so closely the provision in Article VIII of the Confederation:

Article VIII.  All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States, in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to, or surveyed for, any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.  The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States, within the time agreed upon by theUnited States, in Congress assembled.

Under this system, Congress allocated to each state a requisition, based on an estimate of the total value of land and buildings.  The state was obligated to raise this sum by internal taxation, which was then to be forwarded to Congress.  The system never worked as envisioned, and the proof of it lies in these facts.  In the following, all amounts have been converted to Spanish milled dollars, a coin in common use at the time, which was reckoned at 386.7 grains of pure silver.

First, consider requisitions issued by Congress prior to the ratification of the Articles of Confederation:

22 Nov 1777:  Congress issued a recommendation that the states raise $5,000,000, apportioned according to population, to be paid in quarterly installments starting 1 Jan 1778 to pay the expenses for 1778.

5 Jan 1779:  Congress issued a requisition to the states for SM$15,000,000 for 1779.  Congress passed additional resolutions urging the states to pay it on 7 Oct 1779 and 18 Mar 1780.

19 May 1779:  Congress requisitioned $45,000,000 from the states.

None of the above requisitions were ever paid.  In fairness to the states, Congress was not acting under any constitutional authority, only as an emergency institution.

But the requisition system under the Articles, in which the states were obligated by the compact, did not fare much better:

30 Oct 1781:  Congress issued its first requisition to the states under the Articles of Confederation for SM$8,000,000.

4 Sep 1782:  Congress requisitioned SM$1,200,000 from the states, but did not require it be paid directly to Congress.  The states were to use the revenue to pay down interest in their own states.

16 Oct 1782:  Congress requisitioned another SM$2,000,000 from the states.

18 Apr 1783:  A standing annual requisition of SM$1,500,000 was requested as part of resolution to give Congress the power to levy import duties.

27 Apr 1784:  Of the $SM8,000,000 requisitioned on 30 Oct 1781, SM$1,436,511 had been received from the states.  The states were credited with having paid the SM$1,200,000 requisitioned on 4 Sep 1782 as it was for local interest payments.  Of the requisition of 16 Oct 1782 for SM$2,000,000, none had been paid.  The request for the standing requisition of 18 Apr 1783 had been ignored.  Congress decided to lower its expectations down to half of the original requisition of SM$8,000,000, subtracted the amount paid, and accordingly requisitioned SM$2,670,988 for 1784.  This amount would meet the immediate minimal needs of the government.

27 Sep 1785:  Congress requisitioned SM$3,000,000 from the states.

31 Dec 1785:  Of the original SM$8,000,000 requisition of 30 Oct 1781, about SM$1,600,000 had been paid by the states.

15 Feb 1786:  The total receipts since 1781 amounted to SM$2,457,987: a) from requisitions made between 1 Nov 1781 and 1 Nov 1784, SM$2,025,089; b) from requisitions made between 1 Nov 1784 and 1 Jan 1786, SM$432,898.

31 Dec 1786:  Congress had received only SM$500,000 of the money requisitioned from the states over the past two years.

In summary, ignoring the standing requisition of 18 Apr 1783 and the requisition of 4 Sep 1782, Congress had requisitioned $SM13,000,000 from the states, but had received about $SM2,525,000, which is a little less than 20%.   This was clearly not a workable system; Congress could not meet its basic obligations (including paying the men in the army).  Congress survived on borrowed money, usually at very high interest rates, because its credit and means were so bad.

During the debate leading up to the 15 Feb 1786 requisition, Congress issued a report by a committee consisting of Pinckney, King, Kean, Monroe, and Pettit, declaring that the Articles of Confederation were inadequate.  It laid out several conclusions, two of which were: a) the requisition system of raising revenues had been a failure for its entire eight year duration; and b) the requisition system could not be relied upon in the future.

There were some proposals to alter the Articles to give Congress an independent revenue source by granting it a power to levy duties on imports.  Twelve of the states agreed to it, but New York refused on the grounds that a general import duty levied by Congress would serve to weaken New York’s position as a trade center.  The persistent financial crisis and New York’s intransigence, coupled with Shays’ Rebellion, led to the calling of the Constitutional Convention in 1787.

James Madison wrote an undated paper near the end of his life in which he recounted this period as Congress and the nation as a whole suffered under this defect [1]:

“But the radical infirmity of the “Articles of Confederation” was the dependence of Congress on the voluntary and simultaneous compliance with its requisitions by so many independent communities, each consulting more or less its particular interests and convenience, and distrusting the compliance of the others.”

This problem was resolved by the adoption of the U. S. Constitution, in which Congress was given power to raise revenue independent of state influence:

[Article 1] Section 8.  Congress shall have the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of theUnited States; but all duties, imposts, and excises shall be uniform throughout theUnited States.

[1]   Jonathan Elliot, Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787, With a Diary of the Debates of the Congress of the Confederation; As Reported by James Madison, Philadelphia: J. B. Lippincott & Co., 1881, Vol. 5, p. 112

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The Defects of the Articles of Confederation, Part 5

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Every successful nation that intends to remain independent requires the ability to regulate commercial activities with foreign nations.  Historically, national governments have used the management of foreign trade for several purposes, including: a) generation of domestic revenue through imposition of duties and tariffs; b) restrictions or prohibitions on the exportation of certain items which would give competing nations an equal or superior military advantage (such as the U. S. Munitions List); c) regulation on the quality of articles that can be imported (such as consumer safety); d) as a means of promoting trade and closer relations with certain “favored nations”; e) outright prohibition on the importation of articles deemed dangerous (such as “illegal drugs”); f) restrictions on imports to protect domestic industry or stimulate domestic investment and production; g) management of boycotts of certain enemy nations; and h) indirect means to influence domestic policies in a foreign nation (such as restrictions on goods imported from nations that allow child labor).  Nearly all of these have been tried in different times and to different degrees by every nation.  While the first four are eminently practical and wise, the last two are useful only for making symbolic political statements.  The remaining two are generally well-meaning but ineffective, and may sometimes be dangerous.  Regardless of their wisdom or lack thereof, the main point is that every nation has a legitimate power to pass laws regulating foreign commerce as a means to advance or protect its interests.  The consequences of an inability to do so can be illustrated by a review of the events in this area while the Articles of Confederation were in effect.

The states were prohibited by Article VI of the Articles of Confederation from contradicting any provision in any subsequent treaty then in negotiations with France and Spain.  Also, they retained powers over the most important aspects of commercial treaties.

Article VI.  No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince or foreign state; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility.

            No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

            No State shall lay any impost or duties, which may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts ofFrance andSpain.

Article IX.  The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth Article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever; of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining finally appeals in all cases of capture; provided that no member of Congress shall be appointed a judge of any of said courts.

By the ninth Article, the states had the power to regulate commerce by imposts and duties, so long as foreigners were treated equally with Americans, and also retained the power to prohibit exports or imports as they saw fit.  During the war, the ability to make meaningful trade regulations in the states was limited.  After the war, the states naturally proceeded to enact laws that they believed best advanced their interests.  One of the main issues, as detailed in the third essay in this series, was how to respond to Great Britain’s Navigation Acts.  Recall that these were designed to limit America’s ability to conduct trade with British territories; in fact was designed to prevent the Americans from gaining a significant share of the carrying trade in the western Mediterranean.  Britain was able to capitalize on the weakness of each state, and the inability of Congress to form a united front in its alleged capacity to negotiate treaties for all thirteen states.

On 26 Apr 1784, Congress passed a resolution stipulating that all treaties were to be represented as an agreement with all thirteen states.  But since the Articles of Confederation allowed the states to determine import and export rules as well as the setting of duties, which constituted important provisions in commercial treaties, Congress in effect was not able to force the states to abide by any treaties that were negotiated by the ambassadors.  There was therefore little incentive for foreign nations to enter into treaties with the United States. Great Britain chose to adopt a policy of negotiating with each of the states separately; but any state that did so would be in violation of the Articles prohibiting separate treaties by states.

By the end of 1783, Britain’s Navigation Acts had ruined much of the commercial activity in the states.  The Virginia state legislature had passed a resolution in which they urged all the other states to grant Congress a power to respond to them.  On 30 Apr 1784, Congress passed a resolution recommending to the states that it be given power for 15 years to develop and enforce regulations in response to the Navigation Acts.  But the states never did agree to grant Congress this power, as there was considerable suspicion among the states that Congress would be unable or unwilling to develop rules that were equally fair to all the states.  By Mar 1786, several states had granted some powers to Congress to either regulate trade or impose a revenue duty, but they were inconsistent and could not be used to justify a modification to the Articles.  All Congress could do was to issue another request for consideration of the initial resolution.

Meanwhile, a general authority lacking in Congress, the states did as they believed best for themselves.  In Jan 1785, New York imposed a two-fold duty on goods arriving in British ships, as retaliation for the Navigation Acts.  These were passed onto the residents of New Jersey, since they imported their goods from New York.  The residents of New Jersey were thus forced to pay a duty to New York, without any corresponding advantage to their treasury.  By the spring of 1785, merchants in Massachusetts organized a boycott of all British-owned businesses in the state.  In Jul 1785, Massachusetts prohibited exports carried on British ships, levied a tonnage duty, and imposed high duties on certain foreign goods in order to protect domestic manufacturers.  New Hampshire and Rhode Island passed nearly identical laws a week or two later.  Connecticut then opened its ports to British ships, and imposed a tax on imports from Massachusetts.  In Sep 1785, Pennsylvania passed a law imposing duties on 70 items, especially iron manufactures, and imposed a tonnage duty on the ships of any nation that did not have a commercial treaty with Congress.  Pennsylvania also passed laws against trade with Delaware and New Jersey.  As states levied duties on imports, the trade was simply carried to ports in other states, negating the alleged benefits of a revenue duty.  New York imposed heavy duties on imports from Connecticut and New Jersey, including a requirement that every shipment, no matter how small, be obliged to clear customs upon entering any port in New York.  Connecticut responded with a boycott on commerce with New York.  New Jersey retaliated by imposing a large tax on a lighthouse owned by New York, but sitting on an island off the coast of New Jersey.  Most of the states violated the most-favored-nation provisions of the treaties with Holland and France.  In other words, America was in the midst of a trade war among the states, and in violation of agreements with other nations.  Fortunately, the Convention of 1787 occurred before any shooting wars between the states, and the Constitution that resulted resolved the commercial trade issues.

The lack of requisite powers over trade in the Articles of Confederation was so obvious to the delegates at the Convention, that there was little argument over giving them generally to the federal government.  Ultimately, the U. S. Constitution as devised at the Convention addressed all these difficulties by four methods.  First, in regard to treaties in general, the Executive was given power to negotiate them, but they require ratification by the Senate, as detailed in part 3 of this series (Article 1, Section 10; Article 2).  Second, Congress was given general legislative power over foreign trade not covered by treaty (Article 1, Section 8).  Third, Congress was given legislative power to regulate trade between the states and the Indian tribes (Article 1, Section 8 with the caveats per Article 1, Section 9).  Fourth, the states are prohibited from imposing import and export levies except for the costs of inspection, and any excess revenue is to be devoted to the United States (Article 1, Section 10).  The relevant texts are:

Article 1, Section 8, First and Third Clauses:

            The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

            To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Article 1, Section 9, Fifth and Sixth Clauses:

            No Tax or Duty shall be laid on Articles exported from any State.

            No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Article 1, Section 10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

            No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

            No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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The Defects of the Articles of Confederation, Part 4

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Synopsis:  This is the fourth in a series on the weaknesses of the Articles of Confederation.  Congress was the only institution under the Articles, which led to some problems.

James Madison mentions in The Federalist Papers #38 that putting all government powers in the hands of a few is inherently risky.  He is referring to the fact that Congress was the only institution under the Articles of Confederation, a purely federal union organized under emergency conditions at the beginning of the Revolutionary War.  He writes:

Is it improper and unsafe to intermix the different powers of government in the same body of men?  Congress, a single body of men, are the sole depositary of all the federal powers.

The issues that arose specifically from this feature are due partly to the nature of deliberative legislative bodies, and partly to the concentration of such a wide variety of powers in a few hands. (The lack of adequate powers will be the subject of other editions of this series.)  When an issue of importance came up, there was no mechanism within the Congress to address it, other than to debate or send to a committee for consideration, whereupon some resolution would be passed or defeated.  It ended up being tasked with every type of problem, but was not ideally suited for those that required immediate attention or a definite determination.  It had a nominal judicial function to render certain types of findings in disputes between the states, but no regular judicial function.  It was also charged with managing the war effort and foreign relations, which sometimes require quick action.

But the larger risk was that all of these powers were lodged in one place.  It was common knowledge among the leaders in the founding generation, from their knowledge of history and the observations of the great political theorists, that the best structure for both efficiency and protection of liberties was an inherent division of power within the government.  Certain structures are inherently more efficient for certain objectives; but efficiency in government, carried too far, leads to a grasping for more powers to do more things efficiently; which in turn leads to a reduction in liberty as the government wields greater power.  The best solution was to divide the government into branches with narrowly-defined powers, and let the mutual ambitions of each cancel each other out.  While each branch has its legitimate sphere of power, the jealousy of the other branches keeps it within its proper limits.

One of the political theorists familiar to the founding generation was Charles de Montesquieu, who laid out his observations on divided government in his book The Spirit of Laws (1748).  In Book IX, he points out the one nation on earth in which political liberty was the main objective of its constitution, that is to say, England.  He proceeds to dissect the characteristics of the English system and how it promoted liberty in a general sense, writing in part:

“6.  Of the Constitution of England.  In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to things that depend on the civil law.

            By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have already been enacted.  By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions.  By the third, he punishes criminals, or determines the disputes that arise between individuals.  The latter we shall call the judiciary power, and the other simply the executive power of the state.

            The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety.  In order to have this liberty, it is requisite the government be constituted as one man need not be afraid of another.

            When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

            Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with violence and oppression.

            There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

           As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole people.  But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.”

The desirability of a system of functional branches was so evident to the delegates to the federal convention, that the first set of resolutions on a new plan, offered by Edmund Randolph on 29 May1787, called for separate legislative, executive, and judicial departments.  On the same day (the fourth of the convention), Charles Pinckney put forward a draft of a constitution; it also called for the same three separate branches.  The next day, Nathaniel Gorham proposed, and his motion was carried, to postpone the discussion of Randolph’s first proposition about the general enlargement of the Articles of Confederation, and consider directly a general revision of the government, in these words [1]:

1.  That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation – namely, common defense, security of liberty, and general welfare.

2.  That no treaty of treaties among the whole or part of the states, as individual sovereignties, would be sufficient.

3.  That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.

The story of the Convention is how the delegates conducted the debate about the exact character of the government; whether it should be entirely national or entirely federal, or a mix; how the members thereof should be chosen, and what the duration of their offices would be; but from this point forward, there was little debate about the necessity and utility of a government with the three familiar branches, instead of Congress alone.

[1]  Jonathan Elliot, Debates on the Adoption of the Federal Constitution, in the Convention Held at Philadelphia in 1787, With a Diary of the Debates in the Congress of the Confederation, as Reported by James Madison, Philadelphia; J. B. Lippincott & Co., 1881, Vol. 5, pp. 126-134

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