We, the People of the United States, have been educated to ignorance. From our first days in any public school, and many private ones as well, we are taught that we declared our independence from the evil King George in 1776, then King George sent soldiers, we went to war, and we finally won that war and wrote the Constitution of the United States. Over the years, as we get older, they add tidbits of the truth. The midnight ride of Paul Revere, the “Boston Massacre,” taxation without representation, along with a whole host of other tasty morsels for inquisitive young minds to consume. As much as I would like to say that they never lied to us, just omitted bits of the truth, that is simply not true. Paul Revere, for example, would never have ridden through the countryside shouting, “The British are coming! The British are coming!” They were already here. We were here, subject to the British crown, making us all British! His cry was, “The regulars are coming! The regulars are coming!” as the British army was known then. Still, a minor sin contrasted to the sins of omission.
Nowhere in our primary education are we taught that the United States came into being as a confederacy, that would confuse the narrative we are taught as our history (or social studies depending upon your age) that “the Confederacy” belongs to those nasty southerners, who had no other motive to their confederacy than to maintain the institution of slavery. Unfortunately for that narrative, the first government for the United States came into being under a document, with associations to Benjamin Franklin, entitled the Articles of Confederation and Perpetual Union, and begins thus…
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
The Stile[sic] of this Confederacy shall be “The United States of America”.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.
It was ratified March 1, 1781.
You will note that, at this point in our history, the British colonies were acting in the capacity of nation-states. In May 1776 the second Continental Congress called for constitutions by authority of the people, rather than the crown, that the thirteen chartered colonies may be made into thirteen nation-states. That same congress produced the Declaration of Independence that declared
…in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are 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; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. (Emphasis is mine.)
Consequently, thirteen tiny nations banded together into a confederacy under the Articles of Confederation and Perpetual Union against the mighty British Empire.
Further proof of this status of nation-states comes within the Treaty of Paris, signed September 3, 1783, and ratified by the Confederate Congress of the United States (aka the United States in Congress Assembled) on January 14, 1784. The preamble is filled with references of the “United States” and the naming of the representatives present; David Hartley, Esq, a member of the British Parliament representing King George III and John Adams of Massachusetts and other offices, Benjamin Franklin of Pennsylvania and other offices, and John Jay of New York and other offices (Each of them long-winded!) acting as plenipotentiaries of the United States, as well as other stipulations that include a treaty with France.
Following the preamble it begins…
His Brittanic[sic] Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof. (Emphasis is mine.)
Previously, in 1778, King Louis XVI had signed the Treaty of Amity and Commerce with the United States, recognizing each State as a sovereign power in it’s own right. Observing their own sovereignty, the Commonwealth of Virginia ratified the treaty of their own accord on June 4, 1779, thus binding itself with France with this treaty before the United States ratified it for all States. It was the Treaty of Alliance with France, soon after, that hauled France into our revolutionary war.
Thus far all sovereignty is represented or understood as residing with the King or governments of any nation-state. This changes with the ratification of the Federal Constitution for the United States. Further edification on the people’s view of the transfer of sovereignty to the people of the United States can be found in John Jay’s opinion in Chisholm v. Georgia (1793.)
All actions under the First Continental Congress had been through individuals acting as representatives of the originally chartered colonies, each acting with limited, designated powers and authorizations. The First Continental Congress was more akin to the commonly held conventions of the day, where representatives of towns or colonies met to solve problems they shared in common. Notes of the Delegate James Duane show that this convention aquired the name of “congress” in its beginnings. The Second Continental Congress, under the same auspices, resulted in the devolution of sovereignty to the People and their States as John Jay indicates in the Chisholm v. Georgia opinion, becoming the United States in Congress Assembled.
The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain, the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution… (Emphasis is mine.)
After the heat of the recent war, events like Shays rebellion, the Paper Money Riot, and the debt of many of the States among other issues, showed the Confederation’s flaws. It couldn’t finance any war which it may become embroiled in, nor could it assure any treaty could be implemented by its own authority. Any single member-state of the confederacy could negate the integrity of the United States by refusing to participate or cooperate. A single nation with thirteen distinct heads, each acting as individuals with little regard for the needs or duties of the whole. It quickly became apparent to all that the central government for the United States of America, operating under the Articles of Confederation and Perpetual Union, was wholly inadequate to the comfort and security of the People.
While the government under the Articles of Confederation and Perpetual Union functioned as de facto from their inception, barely four years of de jure governing saw the confederacy crumbling through infighting among the States and a central government powerless to take control. In 1786 a national convention in Annapolis Maryland to “Remedy the Defects of the Federal Government,” failed when commissioners of only five States arrived at the scheduled time. The resulting discussion brought about the Convention of 1787 in which the delegates created a new form of government in the new Federal Constitution, one tying itself to the Articles of Confederation while redistributing the power structure of the central government. It granted limited but certain powers and responsibilities to the new government, while retaining the individual nation-states. Compromise was how this rudimentary new government came into being; representation of the people themselves in the House of Representatives while the States were granted equal, but certain, representation in the Senate under Article I of the Federal Constitution.
Article I, also, strips away all externally facing powers and authorities from the States and places them squarely among the those belonging to the new Federal government. Under Article IV, the sovereignty and integrity of the individual State is maintained, and a standard is set for the governing of both existing and future States, a republican form of government. Article VI validates the continuity of the States and their unity in the United States as it binds itself to the Articles of Confederation and Perpetual Union with the following statement:
“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
The newly transformed nation known as the United States of America under the Federal Constitution was outwardly a single nation, while inwardly it was many small nations maintaining the remainder of the duties, responsibilities and authorities traditionally belonging to nation-states. It was in the conventions of the people of the separate States where We, the People first shouldered the responsibilities of sovereigns. The Articles of Confederation and Perpetual Union was a compact between the nation-states our colonies had become. The ratification of the Federal Constitution by conventions of the people of the various States was the beginning of the creation of the people’s compact.
Eager, Delaware was the first to ratify, followed in short order by Pennsylvania, New Jersey, Georgia and Connecticut. Massachusetts soon followed, but Rhode Island openly balked initially, only to ratify after all others had. Maryland, South Carolina and New Hampshire ratified, bringing the State count to the requisite nine ratifying. That point was moot however, as the two largest States were still considering the new government. Virginia and New York did eventually ratify but were alarmed, however, by the lack of protections for the people’s rights under the new government. Massachusetts had agitated for such protections to be added when it ratified with a list of amendments they had felt it necessary to add and Virginia and New York, too, sought to have their lists considered as well.
It was Virginia’s James Madison that set the cogs of congress to turning. Congress had no intention of immediately amending the Federal Constitution. Left to its own devices, the new government would gladly have proceeded to govern as if there had been no objections to its inception. Fortunately for us, Mr. Madison was a man of honor. Upon convincing congress the people would have no faith in their new government if it ignored their concerns, Madison presented nine amendments or adjustments to made to the Federal Constitution. His contention was that the changes were to be made to the body of the document rather than appending them to the end, as became the precedent set by the Bill of Rights.
The founders compact for our government was not complete, however. Their generation was not yet done shaping their new government. Two more amendments came out of the founding generation. The first came about as the result of a case before the Supreme Court, the previously mentioned Chisholm v. Georgia (1793) and the second came about as a result of the inconveniences of the earliest elections.
While the XIIth Amendment made minor operational changes to the Federal Constitution, it never altered its essence as the XIth Amendment did. It protected the States from all but its own people. The end result was what could be termed the Founder’s Constitution. That document ruled as the de jure “law of the land” from the XIIth Amendment’s ratification in June 1804 until the XIIIth was ratified in December 1865. The Founder’s Constitution is as close we can get to the original intent of the founding generation’s concept of a good government. Not great, none of them thought the document to be perfect, but as close as they could get. To quote the esteemed Mr Benjamin Franklin:
I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.
It is instructive to assess what, exactly, the goals were at the Convention of 1787 and what was accomplished after four long hot summer months of sequestered debate. We begin with the baseline government for the United States of America as established by the Articles of Confederation and Perpetual Union. The federal government for the United States of America was assembled as a confederacy.
The Articles had been drawn up in the heat of the moment. King George’s army was already on the continent and the events of Lexington and Concord had demonstrated the King’s aggression toward the colonies. The states had already been instructed to draw up their own constitutions and Congress had already determined that it was time to disolve the political bands and stand together for their common defense. The Articles of Confederation were debated and assembled while fighting the war and a lot would be overlooked or glossed over in it’s construction.
The short comings of the federal government were making themselves apparent well before the summer of 1786 when the first convention to address the deficiencies of the Articles of Confederation was scheduled. The “Meeting of Commissioners to Remedy Defects of the Federal Government,” as the convention was titled, turned out to be as deficient as the government itself. The representatives of only five States arrived at the agreed upon location and time. Four of the States didn’t bother sending representatives, while the remaining four just didn’t make it in time.
Initially, the focus of the convention was to address the issue of protectionist trade barriers many of the States had erected. The gentlemen who gathered at Mann’s Tavern in Annapolis, Maryland in September 1786 didn’t accomplish much, but they did agree to unanimous support for a future convention to address the whole of the short-comings of the Articles of Confederation. The states heartily agreed and and that set the stage for the Convention of 1787.
The Articles of Confederation declare the confederacy, the sovereignty of the states and the purpose of the confederacy. It follows with a basic treaty, recognizing the sovereignty of the laws with each state and mutual recognition and fealty of each state’s laws and citizens. It, then, proceeds to lay out representation of each state in congress assembled. It delegates to the federal government the powers of war and peace and the ability to borrow money and little else. While nine states could do business, it required unanimous consent to accomplish anything. It took on all debts of war the states might incur, yet it had no power to tax. It had to go begging to the states to pay the bills for their common defense. Simple enough to get through the war, but woefully inadequate for running such a confederacy.
This document is incomplete. Stay tuned for further arguments and the synopsis.