U.S. History/Articles of Confederation
What were the strengths and weaknesses of the Articles of Confederation? How did such perceptions affect the decisions that political leaders made in writing the constitution?
Federalist Papers #21 and 22 explain the problems with the Articles of Confederation. I have put my modern English translation of the two Papers below.
excerpt from The Federalist Papers: Modern English Edition Two, copyright 2008 by Mary E Webster
Number 21: Defects of United States Articles of Confederation
I will now list the most important defects in our system. To decide a safe and satisfactory remedy, we must know the extent and harmfulness of the disease.
No Power to Enforce Federal Laws
2 The existing Confederation has no SANCTION—no way to enforce—its laws. Currently, the federal government doesn’t have the power to demand obedience or the authority to use force against delinquent members. We might say that the nature of the social compact between the States includes the right to enforce federal laws. But this assumption is contrary to the States’ rights clause, Article Two, Articles of Confedera¬tion: “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.” This leaves us two options: either accept the crazy idea that the federal government has no power to enforce federal laws or violate the States’ rights clause in Article Two.
The new Constitution has no States’ rights clause. It has been severely criticized for this. However, if we don’t weaken the States’ rights provision, the United States will become the weird spectacle—a government without any constitutional power to enforce its own laws.
No Federal, State Mutual Guaranty
3 The Articles say nothing about a mutual guaranty of the State governments. A guaranty would be useful and we might suggest that it exists, but it would flagrantly violate the States’ rights clause. Although not having a guaranty may endanger the Union, it isn’t as dangerous as the federal government not having the constitutional power to enforce federal laws.
U. S. Can’t Defend State Constitutions
4 Without a guaranty, the Union cannot help fight domestic threats to State constitutions. Usurpations could trample State liberties and the national government could legally do nothing but watch in anger and sorrow. A successful faction could erect a tyranny within a State and the Union could not constitutionally help supporters of the State’s constitutional government.
Massachusetts barely survived the recent turmoil. What if someone like Caesar or Cromwell had led the malcontents? If despotism had been established in Massachusetts, how would it have changed liberty in New Hampshire, Rhode Island, Connecticut, or New York?
Mutual Guaranty: Advantage of Unity
5 Some people object to a federal government guaranty. They say that the federal government should not interfere in internal State issues. But they misunderstand the provision. And they want to deprive us of advantages expected from union. A majority of the people could still legally and peacefully reform a State’s constitution. The guaranty could only operate when violence was used to force changes.
People Hold Governmental Authority
The people hold the whole power of the government. When disagreements appear, the people will have fewer excuses to use violence. In a representative government, the natural cure for poor administration is changing men. A national guaranty would be used against both tyrannical rulers and community factions.
Taxation by State Quotas
6 Currently, State contributions to the national treasury are regulated by QUOTAS, which haven’t been met. There is no one standard to measure the degrees of national wealth. Land values and population numbers have been suggested as ways to determine each State’s quota. But neither truly represents the State’s wealth.
For example, let’s compare the wealth of the United Netherlands to Russia, Germany, or France. There is no relationship between their wealth and their land value and population. The United Netherlands has the higher wealth; the three other nations have immense land and much larger populations.
We can compare American States in the same way and get a similar result. Compare Virginia with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey. Their comparative wealth has little relationship to their lands and populations. Counties within New York State illustrate the same thing. If either land value or population is the criterion, the active wealth of King’s County is much greater than that of Montgomery County.
No Measurement of Wealth Accurate
7 An infinite variety of causes create a nation’s wealth. They include location, soil, climate, products, the type of government, the genius of its citizens, knowledge, commerce, arts, and industry. And there are many more causes that are too complex to quantify. These combine to create differences in the relative wealth of different countries. There is no common measure of national wealth. And there is no way to measure a State’s ability to pay taxes. Therefore, trying to calculate each State’s quota by using a rule based on land or population would be glaringly unequal and extremely oppressive.
Quotas/Requisitions, States Unequal
8 Even if federal requisitions could be enforced, the inequality between States’ wealth alone would eventually destroy the American Union. Public burdens would be unequally distributed. Some States would be impoverished and oppressed while citizens of others would scarcely notice their small tax burden. Suffering States would secede. The principle of quotas and requisitions creates this evil.
National Government Needs Revenue
9 To avoid this problem, the national government must be able to raise its own revenue.
Like fluid, taxes on articles of consumption will, in time, find their level with the means of paying them. To a degree, each citizen’s contribution will be his own option, determined by his resources. The rich may be extravagant. The poor can be frugal. And private oppression may be avoided by judiciously selecting the objects to be taxed. If inequalities arise in some States from duties on specific objects, these probably will be counterbalanced by proportional inequalities in other States from duties on other objects. In time, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities continue to exist, they will not be as odious as those that come from using quotas.
Tax Revenue Limits Federal Authority
10 Consumption taxes tend to block excess taxation. They prescribe their own limit. If they are too high, they defeat their purpose—increasing government’s revenue.
Excessive Taxes Decrease Revenue
When applied to taxation policy, it is true that “in political arithmetic, 2 and 2 do not always make 4.” If duties are too high, people make fewer purchases, less tax is collected, and the government’s revenue is less than if taxes were confined within proper and moderate bounds. This forms a complete barrier against any significant oppression of citizens by taxes of this kind. And it naturally limits the power of the imposing authority.
Indirect vs. Direct Federal Taxes
11 For a long time, most of the government’s revenue must be raised by indirect taxes.
Direct taxes principally relate to land and buildings, and they may be appropriate for the rule of apportionment. Either the land value or the number of people may serve as a standard. Agriculture and population density are co-related. For taxation, numbers are usually preferred because of their simplicity and certainty.
Land valuation is a herculean task. In a country only partly settled and constantly being improved, the difficulties make it nearly impossible. And the expense of an accurate valuation is a major objection.
There are no natural limits to direct taxes. Therefore the establishment of a fixed rule, compatible with its purpose, might be a better idea than leaving the discretion unbound.
Number 22: Defects in Articles of Confederation
The existing federal system is unfit to administer the Union and it has several more defects.
No Federal Regulation of Commerce
2 Currently, the federal government has no power to regulate commerce. But we must have federal regulation of commerce. We haven't been able to have good commercial treaties with other nations. Since the States have been arguing about commerce, no nation will sign a commercial treaty with the United States. They know that individual States could violate the treaty at any time. Besides, they already have every advantage in our markets without giving us any in return except when it is convenient.
In England, Mr. Jenkinson introduced a bill in the British House of Commons to temporarily regulate commerce between our two countries. He declared that earlier bills with similar provisions answered Great Britain's commercial needs. He said that they shouldn't change their policies until the American government became more consistent.
Uniform Foreign Commerce Authority
3 Some States have tried to change Great Britain's commercial policies by limiting or prohibiting some British products. But different States have different restrictions. We won't be able to influence Great Britain's commercial conduct until we have one federal authority and one commercial policy.
Uniform Interstate Commerce Laws
4 Contrary to the true spirit of the Union, some State regulations hurt the commerce in other States. Without national control, there will be more of these policies and anger between the States will grow, further damaging commerce.
The Encyclopaedia ("Empire") describes Germany's commercial situation. Each German prince taxes the merchandise that travels through his state. The wide variety of taxes within Germany has put commerce in constant turmoil. And shippers have to stop and pay taxes so many times along the commercial routes that they don't even bother using Germany's navigable rivers.
This description may never completely apply to us. But as each State makes different commercial regulations, citizens of one State will treat citizens of other States no better than foreigners and aliens.
Quotas, Requisitions to Raise Armies
5 Under the Articles of Confederation, when the federal government needs to raise troops it must requisition quotas from the States. During the recent war, the requisition system made a vigorous and economical defense very difficult. To fill their quotas, States competed against each other, offering enormous rewards. Men who wanted to serve put off enlisting, hoping to get a larger bonus.
The result? During emergencies, enlistments were few, slow, short-term and very expensive. The constantly changing troops ruined discipline and the soldiers who had mustered out threatened public safety. The occasional forced enlistment only worked because of enthusiasm for liberty.
Unfair, States Not Compensated
6 Using State quotas to raise troops doesn't work. The enlistment bonuses hurt the economy. And only some of the States filled their quotas. The States near the heart of the war, influenced by self-preservation, furnished the required number of men. Usually, the States that were not in immediate danger didn't fulfill their quotas. Of course, if a State falls behind paying their money quota, it can be made up. It's impossible to supply delinquent deficiencies of men. However, States probably won't pay for their monetary failures. Whether it is used to raise men or money, the quota system is unequal and unjust.
Problems from States' Equal Suffrage
7 Currently, each State has an equal vote in the national congress. This is another problem. Every rule of fair representation condemns the principle that gives Rhode Island equal power with Massachusetts or Connecticut or New York. This goes against the basic principle of republican government: the will of the majority should prevail.
Some people may say that each State in the Union is a sovereign and sovereigns are equal. Therefore a majority of the votes of States will be a majority of confederate America. But this logical sleight-of-hand doesn't remove the dictates of justice and common sense. A majority of States can be a small minority of American citizens.
Two thirds of the people will not allow one third to manage their interests. After a while, the larger States will revolt. Giving up majority rights is contrary to the love of power and it sacrifices equality. It is not rational to expect the first, nor just to require the second. Since the smaller States depend on union for their safety and welfare, they should readily renounce a pretension that, if not relinquished, would be fatal to that union.
2/3 of States Doesn't Assure Majority
8 It may be proposed that two-thirds of the States (9) must consent to pass important resolutions. But an equal vote between States of unequal dimensions and populations is improper. Besides, nine States can have less than a majority of the people. A bare majority might still decide significant issues. Additionally, the number of States will probably increase and there is no provision for increasing the ratio of votes.
2/3 Majority = Minority Control
9 But this is not all. A two-thirds majority may look like a solution. In reality it makes the problem worse. When more than a majority is needed to make a decision, the minority gets a negative over the majority. It subordinates the feelings of the majority to the minority. Because a few States have been absent from our current Congress, a single VOTE—one-sixtieth part of the union—has frequently stopped all business.
A two-thirds majority is supposed to provide security. In practice, it does the opposite. It becomes nearly impossible to administer the government. And it substitutes the desires or schemes of a tiny or corrupt group of politicians for the decisions of a majority.
During national emergencies, the government needs to be strong and it must often take an action. Public business must, one way or another, go forward. If a stubborn minority is in control, to accomplish anything, the majority must accept the decisions of the minority. Delays, negotiations, and intrigue would hurt the public good. Sometimes compromises won't be possible and the legislature will be unable to act. This would create a government that is weak and sometimes bordering on anarchy.
Foreign, Domestic Corruption Easier
10 If a two-third majority is required, both foreign corruption and domestic faction will be easier. If a large number is needed to pass a national act, nothing improper is likely to be done. However, good legislation may be prevented and bad things might happen because the Congress is unable to act.
Simple Majority Harder to Corrupt
11 For instance, suppose a foreign ally wants a war with a third nation but we want a peace treaty. It would be easier for our ally to use bribes or threats to tie the hands of our government from making peace if a vote of two-thirds were required rather than a simple majority. In the first case, a smaller number (34%) would need to be corrupted; in the latter, a greater number (51%). By the same principle, a foreign power at war with us could stop our congress from functioning and embarrass us.
We may also suffer commercial inconveniences. We might have a commerce treaty with a nation, who could easily block a treaty with her trade competitor, even though it would be beneficial to us.
Republics and Foreign Corruption
12 These evils are not imaginary. A weak side to republics is that foreign corruption is easy. A king or dictator often sacrifices his subjects to his ambition but it is difficult for a foreign power to make a bribe large enough for him to sacrifice his state.
Foreign Corruption of Republics
13 In a republic, people are elected to important offices and have great power. They may be offered bribes that only the most virtuous can refuse. Other officials may be more motivated by ambition or personal interests than their obligations to duty.
History has many horrible examples of foreign corruption in republican governments: It helped ruin the ancient republics. Neighboring nations have bought the officials of the United Provinces. And France and England alternately bought officials in Sweden.
Lack of Federal Supreme Court
14 The Confederation's worst defect is the lack of a judiciary power. Laws are pointless without courts to interpret and define their true meaning and operation.
Treaties must be considered as part of the law of the land. Their effect on individuals must, like all laws, be defined by judicial decisions. To have uniform decisions, as a last resort they should be submitted to one SUPREME TRIBUNAL that is created under the same authority that signs the treaties.
If each State has a court of final jurisdiction, there may be as many different final decisions on an issue as there are courts. Men hold a limitless variety of opinions. We often see not only different courts, but also judges of the same court, differing from each other. Contradictory decisions create confusion. To avoid this, all nations have established one court of last resort, authorized to settle a uniform rule of civil justice.
State Courts Will Not Always Agree
15 This is more important when the laws of the whole country are in danger of being contradicted by the laws of the States or regions. If State or regional courts have the final opinions, a bias based on local views and local regulations would produce contradictions. People might prefer a local law over a federal law. Men in office naturally yield to the authority to which they owe their job.
Currently, thirteen different legislatures and thirteen different supreme courts can interpret or misinterpret every treaty signed by the United States. Therefore, the reputation and peace of the whole country are at the mercy of the prejudices, passions, and interests of each State. Can foreign nations either respect or trust such a government? How long will Americans entrust their honor, happiness, and safety to this unstable foundation?
Amendments Won't Cure Flaws
16 I have mentioned the Confederation's most significant defects, passing over the imperfections that make its power largely impotent. All unbiased men must realize that the system is radically vicious and unsound. It cannot be cured by amendments. It requires an entire change in its important features and character.
One Congress: Inadequate/Dangerous
17 Currently, Congress does not have the powers that the federal government needs. The federal government has limited authority. Therefore, a single congress may be proper. But even rational adversaries of the proposed Constitution say that the federal government needs more power. And a single assembly cannot be trusted with the additional powers.
If the new Constitution is not adopted, the country will either fall apart or Congress will be given tyrannical powers. A weak federal government and the schemes of ambitious men who expect to increase their personal power will push the Union towards dissolution. If the country doesn't fall apart, a single "congress" will accumulate all the sovereign powers, creating the tyranny that adversaries of the new Constitution say they don't want.
People Didn't Ratify Articles
18 The PEOPLE never ratified the Articles of Confederation. Instead, the State legislatures approved it. Now some people are questioning whether it is valid, which has led to the outrageous doctrine of legislative repeal—since it was ratified by the State, the State can repeal it. This is the same as saying that a party to a contract has a right to revoke that contract. As silly as it sounds, some respectable people support the doctrine.
The foundation of our national government must be laid deeper than just the approval of the people's representatives. The American empire should rest on THE CONSENT OF THE PEOPLE. The streams of national power should flow from that pure, original fountain of all legitimate authority.