The Continental Monthly, Vol III, Issue VI, June, 1863 / Devoted to Literature and National Policy

by Various

The Articles of Confederation were entered on within four days after the second anniversary of the Declaration of Independence, by the same body which adopted that instrument, and about nine years before the adoption of the Constitution in convention. The three years which just elapsed had been a season of singular and searching trial. While unity of feeling was compelled in the face of a powerful and aggressive foe, and in the defence of liberties held and prized in common, the mutual relations of the colonies were so indefinitely ascertained, and authority was so loosely bestowed, that unity of action was impossible; there was no power to do the very things which necessity and desire alike dictated. Having taken up arms against the most powerful nation of the time, whose system enabled it to concentrate vast energies on the subjugation of this dozen revolted colonies scattered along the Atlantic coast, they found themselves in so helplessly disorganized a condition, that, separated from the mother country, they could hardly, for any length of time, have successfully pursued the quiet life of peace.

Under these circumstances, they bound themselves together by Articles of Confederation. These were, what similar articles had always been, a species of treaty, having peculiar objects, seeking them in a peculiar way, and declared perpetual, but having an obligation no stronger than that of a treaty, and practically dissoluble at the will of the parties. Thus, the States issued letters of marque and reprisal; Congress determined on peace and war, but the States were depended on to accept the former and carry on the latter when declared. Congress might ascertain the number of ships and men to be furnished, but the States appointed the officers. Congress might fix the sums necessary to be used in defraying public expenses, but the States must raise them. Congress might regulate the value of coin, but the States might issue it. The loose character of this tie is seen still more plainly in the fact that there was no efficient final tribunal. The commissioners appointed by Congress might decide a controversy arising between two States, but there was nothing by which the commissioners could be guided, no stability or force as precedents in their decisions when made, and no power to enforce them if neglected or rejected by one or both the parties. It was simply a provision for constantly recurring arbitration, obtained by reference to a changeable, and practically unauthoritative board of judges. Moreover, this government, weak and unorganized as it was, was withdrawn on the adjournment of Congress; for the Committee of States, appointed to act in the recess, was useless, as well from the paucity of its powers, as from the fact that a quorum of its members could seldom be obtained.

Such a system, or rather, lack of system, could be tolerated only while the peril of their life and liberties compelled the people to perform the duties the government was powerless to enforce. After the war was over, and the people were left with independence and freedom, with a powerful ally in Europe, with elements of unrivalled resource, but with a heavy load of debt, with disorganized social and political relations, with crippled commerce, and without the powerful uniting pressure from outside, this system of confederation began to develop its evils and its insufficiency. To complete the triumph begun by the desolating struggle through which we had just passed, and, by building up a system under whose operation the nation's wealth could pay the nation's debt, and the nation's power protect the nation's honor and interest, to assert at once the claim and the right to respect, was the necessity of the time. To answer this necessity was a very different thing from conducting the war. Commerce was now to take the place of naval conflict; mutual intercourse in the interest of trade was to replace the performance of those duties which the common defence had imposed. The life of the people was now to be saved, not by armed struggles in its defence, but by nurturing its resources, opening its various channels, and freeing it for the performance of its healthful and renewing functions.

For this purpose, a system which could not make treaties of commerce without leaving it in the power of thirteen States to break them by retaliation, which could not prevent one or all of these States from utterly prohibiting the import or export of such commodities as they chose, and which left the people powerless to induce or compel advantages from foreign commerce, while it was even more helpless in regard to domestic commerce—for this purpose such a system was absolutely useless.

After struggling for a few years under the cramping and confusing effects of this system, it was given up, and the Constitution, as framed in 1787, was adopted. The relations assumed by the States at this time were marked. By the Articles, each State had retained its sovereignty, freedom, and independence. By the Constitution, the people and the States reserved such powers as were not expressly given to the United States, or prohibited to the States. The omission of the claim to sovereignty and independence in the Constitution, is as significant as is its presence in the Articles. It appears as a definite surrender of those attributes, as complete, as binding, as permanent as language could make it. Nor must we forget, while the momentous questions of our times are yet undecided, that sovereignty once surrendered can never be 'resumed.' The relations, the duties, and the attributes of the life to which it belongs have been completely and forever given up, while those of another have been as entirely and irrevocably assumed.

The States had thus passed from one into another sphere of existence, whose relations were as different as their objects. The Articles were a league of friendship for common defence, the security of liberties, and the general and mutual welfare. No identity of interest was supposed to exist or sought to be served. Such needs as were, at the time of the adoption, felt in common, were provided for, and the States were left to provide, as best they could, for the others. This much and no more was sought by the States. That the objects of the Constitution were different, as well as that they were avowed by a far different authority, is shown in the declaration with which it opens: 'We THE PEOPLE of the United States, in order to form a more perfect union'—not as to time, for both the old and the new union were declared perpetual; but in kind, for which the States surrendered the former claim to sovereignty and independence. 'To establish justice'—not to insure the amicable relations of allied States, but to form a tribunal which should decide upon the common allegiance and the common privileges of the people. 'To insure domestic tranquillity'—an object unrecognized in the Articles of Confederation, and implying, not association but identity; not the mutual obligations of partnership, but the intimate connection of the national household. 'Do ordain and establish this Constitution.' There is no longer the indefinite expression of half-conceived obligation, nor the imperfect pledge to imperfect union, but there is, instead, the solemn, authoritative language of a sovereign people, self-contained, self-sufficing, conscious alike of its duties and its rights, giving form to what shall be the law of the land, fundamental as being based on the will of the people, supreme as higher than the will of any part of the people, whether individual or State.

A difference as radical pervades all the provisions of the Constitution. By the Articles, the vote in Congress was taken by States. By the Constitution, a majority controls in all but extraordinary business, and the vote is always taken by members. The Congress is no longer the assembled States; it is the assembled representatives of the people—of the nation. It is no longer charged with the management of the mutual relations of parties to an alliance, but with the making of laws which shall be the supreme law of the land throughout its entire extent. By the Articles, prohibitions to the States are made conditional on the consent of Congress—but by the Constitution, the more important acts of sovereignty—forming treaties, issuing bills of credit, regulating the circulating medium—are unconditionally forbidden to the States. The Congress now controls foreign commerce, raises the revenue, levies taxes, and cares for the welfare of the nation. By the Articles, new members of the Confederation were to be admitted by the consent of nine—about two-thirds of the States. By the Constitution, the applicants are regarded rather as an organized body of men, seeking to identify themselves with the American people. To such the national Congress extends the privilege of citizenship, and from such demands conformity to our method of national life.

But while these are instances of the radical difference existing between the methods of treating the same subjects in the Articles of Confederation and in the Constitution, there are elements in the Constitution, peculiar to itself, which make the relations and duties of the States under them utterly irreconcilable. These are embodied in the organization of the national Government. In assuming the functions, it took upon itself the forms and instrumentalities of a sovereign and universal authority. Having founded the Government on the supremacy of the people, and deposited all original power with the representative and legislative body, the Constitution provided for the prompt and thorough exercise of that power by vesting the executive authority in the President of the United States, and such officers as Congress should appoint for him. In the Federation there was no executive, for there was very little to execute. What few things it lay in the power of the assembled States to determine should be done, were given to the respective States to do. When they were refractory or negligent, there was no power in Congress, either to appoint other agents, or to compel them to the performance of their duties. A promise voluntarily given, and deemed subject to voluntary violation, was the only pledge given for the execution of mutual agreements.

Were our national Government now as it was then—as the rebels maintain, and as their Northern friends would have us act as if we believed—the rebellion would indeed be a justifiable attempt to secure self-evident rights. But it is not so. Under the Constitution, an executive is appointed directly by the people, who is bound, by an oath too sacred for any but a traitor to violate, to protect, defend, and preserve the organic law which binds us as a nation forever, and to apply and execute the laws of Congress made in accordance therewith.

And to these laws, which, made by the representatives of the people, embody their sovereign authority, there is given the further sanction of judicial supervision. In the Confederation there was no general and permanent standard by which decisions could be made and preserved. Everything was made to depend on the irresponsible and often conflicting action of the States, or on the unauthoritative determination of the congressional commission. To remedy this defect, and make more complete the national character of our present Government, a judicial power of the United States was vested in the Supreme Court, and in such inferior courts as Congress may establish. This Supreme Court, with original jurisdiction in all cases affecting foreign nations, and in all cases in which a State shall be a party, and with appellate jurisdiction in other cases, is at once a final tribunal for inter-State disagreement, and a representative to the world of an united nation, having an individual existence, and capable of performing all the functions of an individual nation.