WE THE PEOPLE
Who 'We' are and how 'We' got that way
Sunday, August 3, 2008
by Richard E. Berg-Andersson
The difficulty and complexity of the problem of government in India dawned but slowly upon the minds of British statesmen, and reached an acute stage with unexpected suddenness. The yet more difficult problem of colonial government in America developed more gradually; but even to the end its full significance was never realised. For the question was one which had never emerged in human history before. It was the question whether a family of free communities could find a mode of attaining a real unity without impairing the freedom of any member. Britain and the American colonies formed the only linked group of free communities that had ever existed in the world on such a scale; and the necessity of recasting their relationships emerged so suddenly that the character of the problem was not clearly realised on either side of the Atlantic. There was prolonged controversy, which grew more acrimonious, and led in the end to a tragic disruption of the fellowship of freedom.--
With that "disruption of the fellowship of freedom" noted by Professor Muir (that is: the formal declaration of American Independence itself), it would be the Americans, and not their soon to be-ex-British overseers, who would now have to most fully face the very question also noted by Mr. Muir above: "whether a family of free communities could find a mode of attaining a real unity without impairing the freedom of any member".
As recounted in Part One of this series of my Commentaries, at the very moment the United States (plural) of America were so declared "free and independent States... absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved" in the high Summer of 1776, these States so (at least theoretically) United against the nascent British Empire were, indeed, 13 separate- in effect- "Republics" each more or less able to claim to be an independent Nation-State in the modern understanding of that concept and each rather jealous of their respective freedoms potentially being so "impaired" under the guise of "attaining real unity"' after all, wasn't the American Revolution itself the result of the colonies-now-States' dispute over the British Empire's attempts to so arbitrarily impose just such "real unity"?
Of these 13 so "free and independent States", 2 had already- by 4 July 1776's "unanimous Declaration of the thirteen united States of America" (and note well that 'united' here starts with a lower case 'u'!-- for it, indeed, would be the upper case 'States' that were the more important immediate beneficiaries of American Independence than the unity of same would be), writ large atop the engrossed and signed copy of the document, issued by the Continental Congress on their behalf and, nowadays, its ink fading but still to be seen at the National Archives in Washington, DC- adopted governments for themselves (due to exigent circumstances caused by their respective Royal Governors simply leaving), 2 more had decided to continue operating under their Royal Charters (these 2 were the only ones in which the Governor had long been elected by the People, rather than appointed by the Crown, thus they could so easily do so) and the remaining 9 had drafted, were in the process of drafting, or- at the very least- were about to begin drafting, new State Constitutions for themselves (one of these- Massachusetts- would end up taking no little time to so adopt just such a document [as recounted in Part Two of this series]).
As things would turn out: within a year of the Continental Congress recommending (as it had in mid-May 1776, even before the formal declaring of Independence) that the States do just what they were doing or about to do (that is: frame their own respective Constitutions for themselves), 12 of the "United" 13 (again, all but Massachusetts- which was forced to still "wing it" until it could finally adopt a Constitution in 1780) were- indeed- operating under some kind of specific, written authority that did not depend at all upon British oversight and regulation. Indeed, shortly after New York became the last of these 12 in April 1777, a 14th self-proclaimed independent "Republic" had also emerged- this being Vermont (as recounted in Part Three)- though, so long as New York could itself claim that this 'Vermont' was actually part of its own territory, there was no way # 14 could be considered a distinct part of what was already being called 'the United States of America'.
The point of this summary of all that I have written in this series so far is this: by the summer immediately following that which produced the Declaration of Independence, all 13 United States (although, again, Massachusetts was still operating under a provisional post-colonial government until it could get its own more formal Constitution finally adopted)- plus, in addition, a Vermont in at least temporary constitutional limbo- were, in some form or fashion, self-governing sovereign political entities.
Not so, however, that Continental Congress which- however ostensibly- represented the "original 13", however!
And this was a major potential problem when it came to the issue of keeping the War for American Independence going, for the Great Powers across the Atlantic who were most likely to come forward with aid, both military and financial, of the rebelling colonies- these being Britain's natural rivals back in the late 18th Century: France and Spain- did not want to have to deal with 13 separate political jurisdictions (at least, not immediately!) but, rather, one single political authority speaking on behalf of all 13; for the American side, meanwhile, it was far better to present a "One for all and All for one" face during this infancy of U.S. Foreign Policy so that these same Great Powers would not then get the idea they could simply carve up the newly independent States strung along the Atlantic seaboard of North America among themselves once the War was over (assuming, in this case, the Americans could actually succeed, of course).
Therefore, some kind of good faith effort at creating a more definitive, written relationship between the 13 States and the "United States of America" as a whole was needed once their Independence itself had been declared by the Continental Congress in their name. But this would prove to be quite difficult to attain because, of course, the States themselves were already self-governing "free communities" (to use Muir's terminology) which had no real desire to- apart from working together when it came to prosecuting the War for American Independence (and even this could be, at times, rather dicey!)- join together in some kind of homegrown version of the British Imperial System once Independence had been won (assuming, again, that it actually could be won!)
The story of this effort, in basic outline, is surely well known:
the Continental Congress drafted, and then adopted, something called 'the Articles of Confederation'; these Articles were submitted to the State's own governments for ratification-- but all 13 States had to agree to so ratify, else the Articles would not come into effect at all; by the time all 13 had so agreed, the War for American Independence was just about over with- as it turned out- victory going to the Americans (though this could not definitively be known at the time the 13th State to do so- Maryland- finally adhered to the document some seven months before the Surrender at Yorktown); the Articles, however, were found wanting in the few years immediately following the end of that War: thus, a Convention was authorized by what was now called the Confederation Congress to meet in Philadelphia in order to "revise the Articles" and this Convention ended up going far beyond its mandate by creating a wholly new Constitution, which the Confederation Congress- nonetheless- accepted once it had been ratified by the People of at least 9 of the 13 States : therefore, what resulted was the "more perfect Union" which "We, the People of the United States" "do ordain and establish" (to this very day, in fact-- and, hopefully, long beyond the day the reader may actually be reading this piece!)...
but what the Continental Congress now had to do back in 1776 going on into 1777 (which, in a sense, mirrored what the States themselves had been/were doing when it came to framing their own respective Constitutions) would go a long way towards heading up that road toward better defining just who those "We, the People of the United States" mentioned at the very start of the later Constitution of the United States would, indeed, be!
The sequence of events in the late Spring going into the early Summer of 1776 should, by now, be rather obvious to anyone who has read the previous three portions of this series of my Commentaries: the decision, by the Continental Congress, to formally recommend that the States which had not yet done so should form their own post-British colonial governments in May of that year was logically followed by Richard Henry Lee's proposal, in early June, that "these United Colonies are, and of right ought to be, free and independent States". Once Lee had put forth his proposed resolution, and even before the Continental Congress had even formally considered it, it was quite obvious that the Continental Congress was, come said Independence, going to have to be the spokesbody- especially as seen by those outside the new United States of America- for these very "free and independent States" and that, therefore, there had better be some kind of formal agreement between said States and the Continental Congress when it came to just such a role to be taken on by the latter.
Thus, on 12 June 1776- a mere five days after Lee had introduced his resolution for declaring American Independence- the Continental Congress authorized a committee, headed by John Dickinson of Delaware, to draft its own- in effect- "Constitution"; note that this committee was formed before Independence itself was to be formally declared on 2/4 July!
A month later (by which time Independence, in fact, had been declared)- on 12 July 1776- Dickinson reported to the Continental Congress a set of "certain articles of Confederation and perpetual Union" for a "confederacy" to be "styled" 'the United States of America'. Note the same 18th century use of the word "certain" here as that found in the Declaration of Independence itself (where the Declaration mentions those "certain unalienable" 'Creator-endowed' Rights)- meaning "rather limited in number", as in: "not a whole lot of these, so they can be the more easily grasped by the human mind" (thus, the mind could be "certain of them"). Indeed, there were but a mere 13 of these Articles of Confederation (purposely in imitation of the number of States to be so United, perhaps?), though a number of these were quite long indeed (several paragraphs, in some cases).
These proposed Articles were debated, on and off on pretty much a daily basis, in the Second Continental Congress until late August of 1776 when they were put aside for the duration because of far more pressing concerns (the Battle of Long Island, which would prove to be an American defeat that would lead to the British occupation of New York City throughout the rest of the war, was already underway and, as the news of more and more dire straits for George Washington's Continental Army made its way down to Philadelphia, a potential overarching "Constitution" for the new United States was something that now had to be placed on the "back burner").
In mid-December 1776, the Second Continental Congress adjourned, fleeing Philadelphia for fear of an imminent invasion (British troops and Hessian mercenaries were just up the Delaware River from Philadelphia at places such as Trenton, New Jersey), reconvened a week later in the better-protected port of Baltimore. The Articles were not taken up in any significant fashion by this Third version of the body (the various Continental Congresses- as would also be the case for the eventual Confederation Congresses that replaced them after the war- were numbered separately for each place of their meeting, by the way); and, when the Continental Congress returned to Philadelphia the following March (as the Fourth Continental Congress- Washington's famous crossing of the Delaware, followed by Continental Army victories at Trenton and Princeton as 1776 had become 1777 had removed the invasion threat for the time being), it did not immediately take up the proposed Articles again either.
It would be Summer of 1777 (by which time the body was also considering something new: a standard under which the United States could rally-- a flag that would become known colloquially as "the Stars and Stripes") before the Continental Congress would seriously begin reconsidering the Articles of Confederation first laid before it now a year before (if you are going to have a flag, you are also going to need some kind of at least quasi-governmental entity operating under it!). But, in mid-September of that year, the Continental Congress was forced to flee Philadelphia itself for the second time in less than a year (the Continental Army had just been routed at Brandywine Creek and would shortly, it turned out, also lose the Battle of Germantown, allowing the British to occupy and hold Philadelphia through the ensuing Winter of 1777-78).
After a one-day meeting in Lancaster, Pennsylvania (the Fifth Continental Congress), the body finally settled down in York, Pennsylvania, where the now-Sixth Continental Congress would spend the Winter (the same winter that would find the Continental Army hunkering down at Valley Forge). Thus, it was at York- on 15 November 1777- that the Articles of Confederation were finally approved by the Continental Congress and submitted to the States (all 13, mind you!) for their ratification.
As had, up to that point, already become the usual practice in the several States (as noted elsewhere in this series of my Commentaries), the Articles were to be adopted- not by the People of the several United States- but, rather, by those representing them. "Whereas", the document begins, "the Delegates of the United States of America, in Congress assembled did... agree to certain articles of Confederation and perpetual Union between the States [each of which was then named separately in geographical order, north to south, from 'Newhampshire' to Georgia]"; clearly, the notion of "the People of the United States" as a whole does not at all exist within the Articles: rather, it is the People of the several, separate "free and independent States" whose representatives in their respective States' legislatures are, in turn, represented in the Continental Congress (the delegates to the Continental Congress were State appointees, after all) that is the (unstated) underpinning of any sovereignty (which was, indeed, necessarily minimal) attached to the United States of America as a whole by the Articles.
The Articles of Confederation, as has already been said, needed to be approved by all 13 States in order to become effective (in retrospect, it seems altogether necessary to have so focused just such a "One for all, All for one" political mentality on the most important task at hand at the time- defeating the British in order to ensure the American Independence already declared and, by the adoption of State Constitutions, readily implemented, yes, but also to secure Recognition by [and, even more importantly, funding and military assistance from] the Great Powers other than Great Britain [most notably, and again, France and Spain]: thus, not a single one of the 13 United States could be seen to have been left out of the new "Confederation and perpetual Union"- even if this be of its own volition; but the cost of this very necessity was to potentially cripple this new Confederation/Union by ever allowing a single recalcitrant State to, in effect, have a summary veto over any and all collective action that might be taken under the Articles, particularly once Independence had been secured) and- due to disputes between the smaller, coastal States that had no land claims beyond the Alleghenies (Delaware, Maryland, New Jersey) and those larger States with not only such land claims, but also extensive inland territories to begin with (such as New York, Pennsylvania, Virginia)- it would not be until early 1781 that the final State to so ratify the Articles- Maryland- would do so (only once Virginia, the last State to do this, had formally renounced its claims to the area that would eventually become the Northwest Territory) and, thereby, put the Confederation/Union styled the United States of America into fullest operation.
Operation such as it was, however!
For the United States of America had what was now a 'Confederation Congress' with, in fact, little real power over the States: there was no way for the body to enforce its resolutions on a State that did not at all wish to follow them, there was no way for the Confederation Congress to raise revenue for its own operation (although Article VIII of the document provided for a "common treasury" funded by moneys paid based on "the value of all land within each state", the States themselves balked at such Taxation even with [however perfunctory] Representation), there was no real national Executive (though there was a provision, in Article X, for a "committee of the states" "authorized to execute, in the recess of congress, such of the powers of congress as the United States in Congress assembled, by the consent of nine states, shall from time to time think expedient to vest them with" [this was clearly a mirror of the various "Committees of Safety" in at least a few of the States that had served- and, in the Massachusetts Bay of 1777, was still serving!- as rump executives when the colonial assemblies-become-Provincial Congresses happened to not be meeting]; meanwhile, the 'president of the Congress' was just that- merely the moral equivalent of the later Speaker of the U.S. House of Representatives [all the claims of those many "political history geeks" on behalf of John Hanson of Maryland being the "real" first President of the United States- if only because he happened to be the first one chosen president of the Congress after the Surrender at Yorktown- notwithstanding (besides: why not, instead, give that honor to Samuel Huntington of Connecticut, who happened to have held that same position when Maryland finally put the Articles into operation with its own adherence to them in March 1781? or Henry Laurens of South Carolina, president of the Continental Congress when the Articles were first formally adopted in York back in November 1777? or even John Hancock- he of the largest signature on the Declaration of Independence- himself, as he was serving as 'President' on 2 and 4 July 1776?)]) and, perhaps most importantly, there was absolutely no national Judiciary, for each State operated under its own respective construction of English Common Law as might have been altered by its own statutes throughout colonial times and now on into Independent Statehood- thus, there could be no "United States Common Law":
thus, the lack of a national Judiciary was probably the weakest "link" in the Confederation/Union's "chain"- for, in a legal dispute between States, which one's "Common Law" was to then prevail? Theoretically, the Confederation Congress could be seen as acting as the equivalent of Parliament in Westminster (though one doubts that those more strongly supporting the Confederation/Union would have dared made this analogy at the time!) and, thereby, the potential supreme Legislature, Executive and Court all wrapped into one- in essence, a kind of 'Parliament without the Crown': therefore, disputes between the States should have ever been submitted to the Confederation Congress itself (Article XIII, indeed, opens with the words "Every state shall abide by the determinations of the United States in Congress assembled...") but, even where this might be done, there was no effective way to force the losing State(s) in such a dispute to at all accept, let alone implement, any such decision of the Confederation Congress.
For all intents and purposes, the United States of America were (and, yes, "were" here reflects the proper person of the tense) first formally recognized under International Law (what, at the time, would have been called "the Law of Nations") on 30 November 1782 when the 'commissioners' negotiating on behalf of each side in the War for American Independence initialed the proposed Second Peace of Paris finally ending that war: though formal acceptance of the Treaty- via signatures by those same commissioners- would not come until 3 September 1783, however. Thus, as far as the Great Powers- including Great Britain itself (however reluctantly so)- were concerned, the United States- legally- was now a going concern... or rather- ahem!- 13 States not-quite-so-United were, in and of themselves, going concerns with the Confederation Congress as, more or less, their "agent" when it came to dealing with the outside world (but, should a State wish to implement its own Foreign Policy potentially contradicting that of the Confederation Congress, well...).
On this side of the Atlantic, problems such as these were perceived- in many cases, even foreseen- but little could be done about them unless all the States happened to see the very same problem to begin with and in pretty much the same way and then acted accordingly (too many steps to get to this point, of course, lessened the likelihood of any such action): the most damaging fact, however, was that one State's problems (whether political, social or economic) could so easily become a boon to another State ("your ports are iced in?: hey- we'll gladly take in your shipping and pocket the customs duties for ourselves!" and the like) and there was therefore, more often than not, little incentive for cooperation amongst the States (especially once the threat of being forced to unwillingly remain in the British Empire had been removed by the Treaty of Paris); there was also the formidable vehicle of retaliation as one State slapped tariffs on goods coming in from another and the other was forced to then play "tit-for-tat" (even where such a play might actually only end up harming the retaliating State). For example, a State like New Jersey- one "tapped at both ends" by the neighboring port cities of New York and Philadelphia, respectively- was largely at the economic mercy of both New York State and Pennsylvania by mere accident of geography.
Somehow, however- and the American leaders of the time would have certainly seen the hand of that "Providence" of what the Articles of Confederation themselves referred to as "the Great Governor of the World" at work here- the now-formally recognized United States of America made up of 13 oft-quarrelsome "sisters" limped on, despite the ever-growing clouds gathering as a result of such quarrels...
then, in 1786, out of western Massachusetts (the very colony-become-State where the American Revolution itself had begun and in which a new constitutional sovereignty truly based on "the People" had already been implemented), came something called "Shays's Rebellion"...
with this, Professor Muir's question as quoted at the head of this piece- "whether a family of free communities could find a mode of attaining a real unity without impairing the freedom of any member "- was about to face its sternest test yet. And how this test was handled, and ultimately passed, would prove to hearken the establishment, as well as of at least the beginnings of a stronger definition, of that concept known as "We, the People of the United States".
to be continued...