Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (5 page)

The boundary of English settlement at the end of the French and
Indian War in 1763 was, essentially, the peaks of the Appalachian Mountains. In fact, King George III issued a proclamation that year banning his
subjects from settling beyond those peaks. He did not want further difficulties with the Indians who had sided with the French during the war.

For many wealthy colonists, this royal decree came as a great shock.
From John Hancock in Massachusetts to Ben Franklin and the Morrises
in the middle states, from George Washington, Thomas Jefferson, Patrick
Henry, and George Mason in Virginia to the Laurenses in South Carolina,
many wealthy people owned land claims beyond the Appalachians. And
the king had made those claims worthless.

Thus one of the first things the elite class did upon independence was
resuscitate its land titles-or at least, its purported land titles. As it
turned out, the colonies' inland claims often overlapped, and so did the
titles the great men thought they owned.

Guess what?

-.' In the Treaty of
Paris ending the
Revolution, King
George III
recognized the
independence not of
a single American
nation, but of
thirteen "states'
(eighteenth-centuryspeak for "nations").

-sue The delegates
rejected attempts by
monarchists and
nationalists in the
Philadelphia
Convention of 1787
to create a national
(rather than a
federal) government.

So far as Virginia was concerned, what we now call the Midwest
belonged to it. In fact, colonial Virginia included not just today's Virginia,
but also West Virginia, Kentucky, Ohio, Michigan, Indiana, Illinois, Wisconsin, and part of Minnesota. Augusta County, the western county that
took in that vast expanse, was the biggest county in history.

When Congress sent the Articles of Confederation to the states for their
ratification in 1777, twelve ratified. But Maryland held out. Why? Marylanders said that they would never agree to join in a permanent confederation with Virginia so long as it maintained its enormous western land
claims.

Congress periodically attempted to resolve the title disputes and the
boundary issues. However, Virginia congressmen, including George
Mason, James Madison, and James Monroe, responded that there was
nothing in the Articles of Confederation giving Congress authority to say
anything about anyone's land titles in Virginia-or about the extent of Virginia's western claims. That being the case, they said, they would not
even discuss the matter in Congress.

Once again, the history of the Revolution demonstrates that the revolutionaries understood their states to be sovereign, their "nations" to
be ... their states. If America as a whole had been a nation, and if the Confederation Congress had been a national legislature, such questions
should have been resolved by a majority vote. But sovereignty lay in the
states. That was the first principle of American government.

Even before the Articles finally went into effect in 1781, numerous figures in politics and the military were agitating for a further strengthening of the federal center. These people took the name "Federalists." Their
efforts ultimately resulted in adoption of the federal Constitution of 1788.

Why did the Federalists want a strengthened federation? Mostly
because they thought the Revolutionary War had exposed the shortcomings of the Continental and Confederation Congresses. The Continental
Army and the various state military units seemed perpetually short of
men, money, and supplies. The Federalists leapt to the (false) conclusion
that if the thirteen newborn states had had a difficult time in obtaining
credit from European monarchies and bankers to fight a war against the
greatest power in the world, it must have been because the Articles of
Confederation were inadequate!

The Federalists invented a litany of complaints about the state and federal governments of the revolutionary decade. They are familiar to students of history today, because historians-who tend almost
unanimously to side with the Federalists in this dispute-have been
echoing them ever since.

A Book You're Not
Supposed to Read

Collective Action under the Articles of Confederation by Keith L. Dougherty; New York:
Cambridge University Press, 2001.

If states were slow to pay their requisitions, then, it must have been
because they were selfish and unpatriotic. Federalists claimed that only
a stronger government could solve the "problem" of a government that
just barely had enough money and coercive power to do what it was
intended to do and did not have the
resources to do much of anything else.
(What a wonderful problem!)

But the Federalist version leaves out
some important facts. For instance, the total
amount of voluntary state contributions supposedly owed to the Confederation by the
states in 1788 exceeded the amount of gold
and silver (that is, money) in the entire
United States! And political scientist Keith L. Dougherty has demonstrated that the states actually contributed more to the war effort than any
rational choice model would predict.

Federalists in the Continental and Confederation Congresses repeatedly attempted to get the states to cede more power to Congress. In each
case, they were unsuccessful: Americans from New Hampshire to Georgia simply refused. They did not want to trade one distant, unaccountable authority in the British Parliament for another in a more powerful
American Congress. Especially heroic on this score was little Rhode
Island, which refused to ratify a tariff amendment when all twelve other
states did. Virginia responded by repealing its ratification, and for Federalists, that was the last straw.

The campaign for a stronger federal government grew-even when
King George III admitted defeat. But he admitted defeat to the "sovereign
and independent states." As Article I of the Treaty of Paris put it, "His
Britannic 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 and successors, relinquishes all claims to the Government, propriety and territorial rights of the same, and every part thereof."
Note that King George was required by the terms of the treaty not to admit
that "America" was independent or that "the United States" was independent, but that the thirteen named states were independent.

Interestingly, in Article V, the American commissioners undertook on
behalf of Congress to implore the states to restore confiscated rights and
property to Loyalists. This provision, which never bore the fruit the
British hoped for, recognized the constitutional situation of the American states-independent not only of Great Britain, but also of each other.
Article VII said that there would be a "perpetual" peace between Great
Britain and the United States-which meant that the treaty did not have
a fixed expiration date.

In 1785, the states of Maryland and Virginia appointed delegates to a conference to meet at George Washington's home, Mount Vernon, on the
Potomac River. Their task was to negotiate an arrangement for sharing the
river-establishing each state's navigation and taxing rights. The conference failed-Virginia's delegates didn't show-but a new meeting was set
for the following year at Annapolis. This time, the goal was a reform of
the Confederation.

When only five states sent delegates to the Annapolis Convention of
1786, leading figures like Alexander Hamilton of New York and James
Madison of Virginia called for a new convention to take place the following summer in Philadelphia.

Why would a new convention meet in 1787? The Federalists told the
state governments that its purpose would be to propose amendments to
the Articles of Confederation. Rhode Island, which had no interest in strengthening the Confederation, did not send a delegation. New York,
where Governor George Clinton and the majority of the legislature were
skeptical of the Federalists, sent a moderately pro-reform three-man delegation. (Nationalist Alexander Hamilton received an appointment, but
his friend and political ally John Jay missed out.)

Portrait of a Patriot

Alexander Hamilton (1757-1804), a native of Nevis, was among the most significant figures in American constitutional history. His monarchist musings in
the Philadelphia Convention (in which he represented New York) did not have
much effect on the shape of the Constitution. In support of ratification, he organized the series of
newspaper essays that ultimately came to be known as The Federalist, which formed the nub of the
Federalist case in New York, writing more than half the essays. In time, the series would form the
backbone of nationalist interpretation of the Constitution. As secretary of the treasury under Washington, Hamilton enunciated the clearest argument ever made for a liberal (loose) construction of
the Constitution. He was killed by a political enemy, Vice President Aaron Burr, in an 1804 duel.'

In Virginia, which agreed to send a delegation to help propose amendments, Richard Henry Lee and Patrick Henry-long the dominant voices
in the all-powerful General Assembly-stayed home. Lee confided that
he did not think the convention likely to do
work he approved; Henry, more prone to
offer up a memorable line, later said he
"smelt a rat."

Why? There was a little history behind it.
Congress had been receptive, in
1785-1786, when John Jay assured it that he
could negotiate an agreement with Spain that
would grant the states valuable trade concessions in the Caribbean. All he needed to offer
in return, he said, was an American commitment to forgo use of the Mississippi River (which then belonged to Spain)
for twenty-five years. Under the Articles of Confederation, nine states
needed to agree to any treaty, but Congress authorized Jay to negotiate the
agreement anyway, despite the objections of the five southern states.

According to James Madison, this move by Congress converted Patrick
Henry from "the Champion of the federal cause" to a lukewarm advocate
at best. If Mississippi navigation rights were actually surrendered, Madison said, Henry would become an outright opponent.

The year 1787 also saw the Confederation Congress adopt its most significant legislative initiative, the Northwest Ordinance. In that law, Congress provided that states could be carved out of Virginia's former
trans-Ohio River territory (what we now call the Midwest). Among other things, it said in Section 13 that once they had been organized, the new
states would be admitted to the Union on an equal footing with the original states. The federal principle-the principle of state equality-would
guide their incorporation into the United States.

Legal Latinisms

Senate: from the Latin senatus, the great
national council of the Roman people.
The federal government and most of the
states have legislative bodies so named!