Guest Essayist: Gary Porter


Shay’s Rebellion was a “wake-up” call for all Americans. The armed closure of a duly constituted court was a drastic step. But these were drastic times. The war with Britain, though favorably concluded for the Americans, had left the economies of the states in shambles. The Confederation Congress found itself powerless to intervene. By the summer of 1786, farmers were unable to find a market for their crops or meet their tax obligations; without hard cash they were unable to make their mortgages or loan payments. The courts, with little recourse but to uphold the law, were foreclosing on farmers who only a few short years before had been fighting for their country’s independence. On August 31, 1786, ex-Revolutionary War Captain Daniel Shays, now himself a bankrupt farmer, lead an armed mob to the Northampton, Massachusetts court and forced it to close. But Massachusetts was not alone: Pennsylvania’s James Wilson observed that “The flames of internal insurrection were ready to burst out in every quarter.”  Mutinies of soldiers in New York, New Jersey and Pennsylvania fed the anxiety. Political cartoons began to appear in American newspapers mocking Congress. Leading men began calling for amendments to, or even replacement of, the Articles of Confederation.

In April 1786, Rufus King wrote to Elbridge Gerry: “We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress.”[i]

Three years before, Henry Knox had complained to Gouverneur Morris: “As the present Constitution is so defective, why do not you great men call the people together and tell them so; that is, to have a convention of the States to form a better Constitution.”[ii]

Finally, the pleas for change were heard, there would be a “Grand Convention” to “fix things” once and for all. Alexander Hamilton and James Madison were elated. Their quiet work behind the scenes had paid off.

In Hamilton’s view “The fundamental defect is a want [lack] of power in Congress.”[iii] He had tried numerous times to have the Articles amended, to no avail. George Washington complained of “a half-starv’d, limping Government.”[iv]

Madison was determined not to waste the opportunity the convention afforded. First, he would place the Articles under his scholar’s microscope and identify each of its defects. Madison was in a unique position to undertake this analysis: he had represented Virginia from 1780-1783 in the Confederation Congress and had seen from that vantage its inherent weakness. Following this, he had served the next three years in the Virginia Assembly, seeing the problems caused by the Articles from that perspective. Returning once again to a seat in the Confederation Congress in the Spring of 1787, Madison sat down at his desk before setting out for Philadelphia and wrote “Vices of the Political System of the United States.” These would become the “cautions” that a new government must avoid. Hopefully it would become a government actually empowered to govern.

All but the last of the twelve “bullet points” Madison set down in “Vices” were accompanied by elaborating commentary. For instance: “Failure of the States to comply with the Constitutional requisitions,” the first complaint, was explained as an “evil” which “has been so fully experienced both during the war and since the peace, [which] results so naturally from the number and independent authority of the States and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.”

While Madison was careful to identify the “effects” of the deficiencies of the Articles, he did not focus on its numerous structural defects:

  • The Articles created only a unicameral Congress. In 1774, the Continental Congress had simply “come together” without much thought of being a permanent fixture. Governments of history had often included a Senate, but where would the authority to add a Senate to the Congress come from, even if the advantage was obvious? By 1787, however, all of the states had adopted bi-cameral legislatures in their state constitutions. While this example was adopted by the convention, it is generally regarded as one of many compromises. (See Article 1)
  • There was no Supreme Court. With Congress lacking the authority to create a supreme legal body, conflicts between states were assigned to ad hoc committees to resolve. Without an enforcement arm, committees were limited to recommending solutions, relying on the good will of the states to carry out their recommendations. (See Article 3)
  • There was no true chief executive function. Beyond keeping order in the Congress, the President had little power to do much else. Enforcing the laws passed by Congress? Not in the President’s obligations. (See Article 2)
  • The amendment process effectively guaranteed no amendments. The Articles required state unanimity before an amendment was adopted. In practice, this proved self-defeating since in every case a single state could (and did) object and thus the suggested amendment came to a grinding halt. (See Article 5)

All of these defects were corrected in the new Constitution.

The standard meme today is that the Articles were discarded in their entirety and a “brand-new” document substituted. But while the structure of government adopted at the Grand Convention was indeed new, not every feature of the Articles was abandoned; the following clauses and provisions were retained, some nearly verbatim:

  • The “privileges of trade and commerce” enjoyed by the citizens of each state were preserved, reworded as the privileges and immunities clause of the Constitution. (See Article IV, Section 2)
  • The power to extradite fugitives. (See Article IV, Section 2)
  • The “Full faith and credit clause.” (See Article IV, Section 1)
  • “Freedom of speech and debate in Congress” was retained as was immunity from arrest. (See Article I, Section 6)
  • The prohibition against treaties, confederations, or alliances between the states without the consent of the Congress. (See Article I, Section 10)
  • Congress’ exclusive war-declaring power. (See Article I, Section 8)
  • Congress’ exclusive authority to issue letters of marque and reprisal and punish “piracies and felonies commited (sic) on the high seas.” (See Article I, Section 8)

At the Virginia Ratification Convention on June 5, 1788, Edmund Pendleton would sum up the Articles thusly: “Our general government was totally inadequate to the purpose of its institution; our commerce decayed; our finances deranged; public and private credit destroyed: these and many other national evils rendered necessary the meeting of that Convention.”

The genius of fifty-five “demigods” would find solutions to the various defects of the Articles of Confederation, would create the “more perfect union” the men sought and that America deserved, yet all this genius depended on one final institution: a virtuous people. As John Adams reminds us: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”[v] If this constitutional republic is to survive, if the republic is to be “kept,” the result is in the hands of “We the People.”

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Rufus King to Elbridge Gerry, April 30, 1786

[ii] Henry Knox to Gouverneur Morris, Feb 21, 1783.

[iii]  Alexander Hamilton to James Duane, 3 Sept. 1780.

[iv] George Washington to Benjamin Harrison, 18 Jan. 1784.

[v] To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, October 11, 1798.

 

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