Recall from the Introduction to this series, James Madison’ seemingly contradictory stances in The Federalist No. 40. Is the Constitution an amended version of the Articles of Confederation (AC) or is it an unauthorized and radical departure? Article V supporters regularly encounter this question; it is one which Article V opponents use to delegitimize the Constitution.
James Madison opened No. 40 with a quick reference to No. 39, in which he distinguishes between national and federal systems. A national system is democratic. A majority of the people rule, and a majority may change the governing form. In a federal system, all the member republics must agree to amend the governing treaty articles.
In No. 40, Madison goes on to defend the process, the events that led to a new governing form. As opposed to the opinion of COS opponents, the controlling authority wasn’t congress; Madison wrote that the convention’s powers should be viewed through the state commissions issued to each delegate.1
Since each commission adapted verbiage from either the Annapolis meeting of September 1786 or congress in February 1787, let’s examine their pertinent sections.
The Annapolis report recommended:
The appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.
The states initiated the Annapolis meeting. Congress was not involved at all. Yet, as a matter of courtesy, the report closed with, “Though your Commissioners could not with propriety address these observations and sentiments to any but the States they have the honor to represent, they have nevertheless concluded from motives of respect, to transmit copies of the Report to the United States in Congress assembled, and to the executives of the other States.”
From Congress’ February 1787 resolution:
Whereas . . . delegates in Congress have suggested a convention for the purposes expressed in the following resolution . . . such (a) convention appearing to be the most probable means of establishing in these states a firm national government,
Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.
Taken together, these are the objectives/tasks of the convention:
- Establish a firm national government.
- Said government was to be adequate for the needs of the government and preservation of the Union.
- Achieve these goals through alterations and provisions in the AC, or by such further provisions as should appear necessary.
- Report the alterations and provisions to congress and the states.
Madison wrote that the charge of the convention was “to frame a national government adequate to the exigencies of government and of the Union, and to reduce the Articles of Confederation into a form that accomplishes these purposes.” Even if congress was the controlling authority (it wasn’t), and congress and the states thought the convention overstepped its authority (it didn’t), Madison reasoned, “the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means” If goals conflict, shouldn’t the less important be sacrificed?
What say COS opponents?
The soft-spoken James Madison took issue with those who criticized the Constitution in broad terms without addressing specifics. Was it more important to preserve the AC than to establish adequate government that preserved the Union? Let them declare whether the purpose of reform was to keep the AC, which originally aimed to establish a government adequate to national happiness, or whether the insufficient AC ought to be sacrificed. To those who believe the convention made unauthorized alterations, what, asked Madison, was the boundary between authorized and usurped innovations? If substantial change wasn’t necessary or anticipated, why did the states bother with a convention in the first place?
Just what, precisely, are the unchangeable fundamental principles of the AC? Is state sovereignty fundamental? The states relinquished portions of their sovereignty to the AC. May they not do so under the Constitution? Eleven state legislatures appoint delegates to the AC congress. In two, Connecticut and Rhode Island, the people elect delegates. The Constitution provides a popularly elected House of Representatives. Is this a usurpation? Does the AC act strictly on the states? No. In certain instances involving piracy and capture on the high seas, coins, weights and measures, trade with Indians and trials by courts-martial, the AC acts on individuals. What about taxation? Twice, the AC came very close to establishing an impost. Are the tax provisions in the Constitution a usurpation?
Like the AC, the Constitution demarks the boundary between state powers granted and those left untouched.
In one point, Madison acknowledges the convention “depart(ed) from the tenor” of its authority, when it allowed the new plan to be carried into effect by nine states. Aside from this, Madison viewed no foundation to the charge that the convention exceeded its power. For those who believe members went beyond their commissions, their actions were not only warranted, they were required.
Conclusion. Consider the evolution of our governing form on a graduated scale.
Federal — AC — New Jersey Plan ———- Constitution —————— Post 17A —– National
At one end is a federal government. At the other is a national government. Were the AC purely federal? As Madison explained, the answer is “no,” but the AC were close to the federal end. Now, where Madison was limited in his argument by an oath of secrecy, I am not. He did not relate debate surrounding the New Jersey Plan, a small-state sponsored improvement to the AC. Like the Constitution, the New Jersey plan added a chief executive and judiciary. In other words, men who were wedded to keeping with few amendments to the AC realized the necessity of three branches. The only structural difference between the New Jersey Plan and the draft Constitution was the lack of a House of Representatives in the former. With the establishment of three branches, the New Jersey Plan could be placed a third of the way from the purely federal form. In establishing three branches along with a House of Representatives, the Constitution is halfway between national and federal on our imaginary scale.
Most of us use the term, “federal government.” When our government lost its primary federal institution upon ratification of the 17th Amendment in 1913, it slid, and traveled at least two-thirds of the way towards the national end of the scale. Our remaining federal institution is the Electoral College, and it is under extreme duress.
All in all, the Constitution is a radical extension of the AC, but not much more radical than the New Jersey Plan. There were national features in the Articles of Confederation, which the Constitution enlarged at the expense of its federal attributes.
When Article V opponents gnash their teeth over the Constitution, we should ask them what THEY would have done with Articles of Confederation and not let them off with generalities. If exacting preservation of the AC was paramount over establishing adequate government, which is a silly premise, why bother with a convention? I ask them why they are so concerned in 2017 with a process that gave us a magnificent Constitution. Why do they attempt to delegitimize and cast doubt on the Constitution? To what purpose? Their logical conclusion is to go back to the AC? Really? How?
This concludes the series on Whatever Happened to the Articles of Confederation?
We are the many; ruling elites are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
Postscript. A few hours after posting, I was made aware of a Michael Farris’ column at COS. He pointed out that since thirteen state legislatures condoned ratification by the people, it constituted approval by the state legislatures, as per the AC. Super!
- History can thank New Jersey’s commission for demanding equality of state suffrage in the Senate. Until July 16th, state representation in the senate was proportioned by population.