Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (4 page)

The fighting began at Lexington, Massachusetts, on April 19, 1775. Still,
only a minority of colonists thought of independence as desirable. It was
a daunting prospect: a declaration of independence meant war, which the
colonists might well lose.

Even if they won, the colonists would have a victorious army and a
conquering general, which had always been a formula for military dictatorship as a precursor to monarchy. And leaving the British Empire
would mean being outside the protective tariff wall behind which the
British economy had developed, instead of inside it, where the colonies
had become so prosperous.

Early in 1776, however, Thomas Paine published his pamphlet Common Sense. He moved the majority of his fellow colonists from the Loyalist and undecided columns into the Patriot camp.

On May 15, 1776, Virginia's ruling revolutionary convention, the May
Convention, adopted three resolutions:

1. Virginia must have a declaration of rights.

2. Virginia must have a republican constitution.

3. Virginia must seek federal relations with such other colonies
as wanted them and alliances with whichever foreign powers
would enter into them.

The delegates then ran a Continental Union flag up the flagpole at the
old Virginia capitol in Williamsburg. As James Madison wrote that night,
Virginia had established its independence!

But alone. And, as Benjamin Franklin famously put it in another context, the Patriots must all hang together, or they would surely all hang
separately. So the Virginia Convention (Virginia's ruling body in the Revolution's early days, as the last royal governor had fled the colony)
instructed Virginia's representatives in the Second Continental Congress
to secure a declaration of American independence.

The Congress was, as Massachusetts's John Adams put it, a meeting place
of ambassadors. In fact, the word congress had always denoted assemblies of the representatives of sovereigns-as in the case of the Congress
of Westphalia in the seventeenth century. It made sense, then, when Virginia's Richard Henry Lee stood up to move, in language given to him by
the Virginia Convention, that Congress should 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."

Like the word congress, the word state had a meaning in the eighteenth
century that may be lost on us today. For a Virginia congressman to say
that Virginia was a state was to put it on par not with Brittany in France
or Yorkshire in England, but with France and England. Congress responded by appointing a committee to draft a declaration of independence.

The chairman of the committee, John Adams, had long been the leading spokesman (a tireless pest, really) for independence. As Adams
admired A Summary View of the Rights of British America, he asked
Thomas Jefferson to write the first draft of the Declaration. Adams and
Ben Franklin made slight alterations to it before the committee presented
it to the whole Congress.

And what did the Declaration declare?
That the colonies were independent states.
Politicians and historians have made a habit
of fixating on the second paragraph of the
Declaration, which includes a restatement of
Richard Bland's account of the origin and
just powers of government (including the
statement "We hold these truths to be selfevident..."). They say that America was
founded on that. But it wasn't.

In instructing Richard Henry Lee and his
colleagues to secure a declaration of independence, the Virginia Convention did not tell them to concoct a new theory of government. (The same
held true for the other states' representatives.) The first three sections of
the Declaration-which explained why King George III's stewardship had
been found wanting-had no legal effect. That portion of the Declaration
was what lawyers call "hortatory" language: like a statutory preamble, it
was the predicate for the effective section-the one that proclaimed the
states independent.

In the Declaration's culminating fourth section, Congress declared the
colonies to be "free and independent states" and claimed for them the
right to do everything that free countries could do. They were the sovereign equivalents of Russia, Sweden, and Spain. (Okay, maybe San Marino and Monaco, but you get the idea.) As the war progressed, they continued to behave as if they were. They guarded their sovereignty carefully,
never giving to Congress authority that they might be unable to reclaim.

The Old Dominion Paves
the Way

Virginia established its independence on
May 15, 1776-long before the Declaration
of American Independence.

In 1777, Congress sent out to the states for their ratification the Articles of Confederation, America's first federal constitution. It began by saying, "Articles of Perpetual Union between the states of..." and listed the
states, from north to south. Article I said, in full, "The Stile [sic] of this
Confederacy shall be `The United States of America.'" Article II added,
"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."

This language is, under the circumstances, entirely unsurprising. It
would have been surprising if they had said anything else. The United
States were states, and they had joined together. The fact that their union
had no set end date, in part because the length of the war could not be
foreseen, was denoted by calling it "perpetual." (In those days treaties
between European states often purported to be "perpetual." This did not
mean that neither side could bring a treaty agreement to an end, but that
there was no built-in sunset provision.) The express reservation of each
state's undelegated powers was a hedge against arrogation of power by the Confederation. After all, the new Congress under the Articles was to
have an army, so it might well be tempted to intrude on the states' prerogatives. It was for this reason that Article II noted that sovereigntyindivisible final authority-remained in the states.

What a Patriot Said

"America was conquered, and her settlements made, and firmly established, at the
expence of individuals, and not of the British public. Their own blood was spilt
in acquiring lands for their settlement, their own fortunes expended in making
that settlement effectual; for themselves they fought, for themselves they conquered, and for themselves alone they have right to hold."

Thomas Jefferson, A Summary View of the Rights of British America

According to Article III of the Confederation, the thirteen states entered
into this formal relationship "for their common defense, the security of their
liberties, and their mutual and general welfare." In keeping with the federal
(not national) nature of the new government, Article V provided that each
state's congressional delegation would have one vote. This provision would
not have made sense if the thirteen states had been one nation, or if their
people had been one people. As they were thirteen distinct states, each
equally sovereign, however, it made sense for them each to carry equal
weight in the federal councils. (Here again, we must recall that the word
state in the eighteenth century connoted a sovereign entity on the order of
Spain or France, not a province like Andalusia or Dauphine.)

Articles VI and VII bound the states to wage war and carry on diplomacy only through the Confederation. Article VIII said that the expenses
of the war would be paid out of a common treasury into which the states
would contribute on the schedule Congress set, but it left to the states the
task of deciding what taxation scheme to employ to raise their contributions. As the colonists had insisted that Great Britain allow the states sovereignty over taxes, it was incumbent on them to practice what they
preached in their own confederation.

Article IX established procedures for resolving boundary disputes and
other matters that might easily have brought the states to blows. It also
provided that the Congress could not take major steps such as coining
money, borrowing money, appointing a commander in chief, and making
war unless nine states agreed to do so. Not majority rule but a supermajority was required for doing any of those things.

Article XIII, finally, required the consent of all the states to any
amendment of the Articles. Again, while the constitution of a national government could, presumably, be amended by a national majority, a federal constitution, such as the Articles of Confederation created, required
the agreement of all the constituent parts-all the states. This last article
also included the Congress's thanks to "the Great Governor of the World"
(no, not the UN) for the states' ratification. It said that it was effective on
the "ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight."

To anyone familiar with the form of the dispute between the colonists
and the mother country over the previous decade, the various elements
of the Articles of Confederation described above cannot be surprising.
The colonists had insisted for years that their colonial legislatures alone,
not the British Parliament, could tax them. When Parliament had insisted
that it alone was sovereign, and that sovereignty was ultimate power, the
colonies had responded by locating sovereignty in their colonial legislatures. The colonists saw themselves as defending their traditional English rights. They believed that to defend their traditional rights from an
overweening British Parliament it was necessary for the colonies to
declare themselves "free and independent states." Now, in order to formalize the military alliance that was fighting the Revolution, they opted
not to merge their thirteen societies into one, but to cooperate so much
as seemed necessary to win the war.

hile the Revolution absorbed much of the attention of the
Continental Congresses, and later the Confederation Congress, other issues demanded attention as well during the
1770s and 1780s. Among those was the pressing need to provide some
type of governance for the larger colonies' western lands.