The Dismal Failure of Union, or How I Learned to Stop Worrying and Love the Articles of Confederation

In my course this summer in Rome (“The Roman Republic and the US Constitution”), we spent the first two weeks surveying the rise and fall of the Roman Republic and the last two weeks reading The Federalist from start to finish, and looking for connections between the two (of which there are a fair number).

As it happened, I misjudged the pacing of the class a little bit, and finished what I had to say about ancient Rome one class too soon, so I had a class to fill . . . What would make a good segue into the Federalist?  Then it hit me: let’s read the Articles of Confederation and see if we can get a feel for what that government actually looked like.  Can’t hurt, right?

Now I don’t know about you, but nobody in my classroom (including me) had ever read through the A. of C., and it turned out to be a damned interesting experience.  [You can try it here]  To begin with, it’s good to remind oneself from time to time that our first experiment with “republican government” was a colossal failure – a self-proclaimed “perpetual Union” (!) that lasted for less than a decade.

But beyond that bit of humility inducement, on the substance of it it’s pretty easy to identify –  in hindsight! – the many flaws of the government of the United States of America as they appeared in, say, 1787 or thereabouts.  You read through the A. of C. and you realize, as one of my students nicely put it, that it has “no provision for executive power,  legislative power, or judicial power.”  The trifecta of constitutional deficiencies.  It doesn’t really set up a “government” at all – it’s more like a “league” of sovereign States, in which those States promise each other certain things (mostly, to treat an attack on one as an attack on all and to contribute men and money to the common defense at the direction of the Congress).  Publius (Hamilton, in this case), put it more elegantly (in Federalist 15):

“The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, as contradistinguished from the INDIVIDUALS of which they consist. . . . [T]he United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. . . .

[W]e must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens — the only proper objects of government.”

In Nos. 16 – 22 and thereabouts, Hamilton ticks off the many other failings of this “league of sovereigns”:  it isn’t “empowered to employ the arm of the ordinary magistrate to execute its own resolutions” (16); there is a “total want of SANCTION to its laws” (21); it uses quotas levied on the States to replenish the Treasury , instead of “authorising  the national government to raise its own revenues in its own way.”; there’s a “want of a power to regulate commerce” (22); the equal suffrage among the States in Congress “contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail” (22); there “the want of a judiciary power,” a “circumstance which crowns the defects of the Confederation.”  “Laws are a dead letter without courts to expound and define their true meaning and operation.”

And if that weren’t enough, there’s the fact that the so-called government . . .

“. . . never had a ratification by the PEOPLE[, but rests] on no better foundation than the consent of the several legislatures.  [T]he foundations of our national government [must lay] deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (22)

All very interesting late 18th century stuff, beautifully articulated.  But even more interesting is what came next, immediately after class.  As it happened, we had a lecture scheduled that day by Isabella Bufacchi, the financial reporter at one of the daily newspapers in Rome (Il Sole24Ore), on the developing Euro crisis.  At her lecture, she starts talking about the fundamental problems, in her opinion, afflicting the structure of the European Union and the Eurozone that have contributed to (and become the focus of attention because of) the current Euro crisis.  And damned if her list didn’t look a lot like Hamilton’s list!  It was actually quite astonishing – a couple of students asked me afterwards if it had all been planned out that way (it hadn’t).  The European Union, too, legislates (primarily) “for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, as contradistinguished from the INDIVIDUALS of which they consist”; it has no power “to employ the arm of the ordinary magistrate to execute its own resolutions”; there is a “want of SANCTION to its laws”; it has no taxing authority for the purpose of raising its own revenue; on fundamental questions is gives each State equal suffrage; its judiciary power is crabbed and circumscribed; and it has “never had a ratification by the PEOPLE[, r]esting on no better foundation than the consent of the several legislatures.”

It made me think:  Perhaps the Europeans who are trying to envision what “Europe” should look like would take comfort from knowing that our first try at Union was a failure, too.  And that the Federalist should be better known, and more widely read, in Europe.  Europe needs its Publius, right about now:  A fresh start; a catalog of the flaws of the current system, and a plan for a new way forward, to be submitted to the people of Europe for them to accept or reject.