Centralized vs Dispersed Power

Where America Took anHistorical Wrong Turn

America should never have replaced the Articles ofConfederation with the United States Constitution. Although it is revered asthe source and seat of freedom, the Constitution ensured freedom's eventualdemise. The power it centralized in a federal government has gradually brokenfree from restraints. But as long as the Constitution is worshipped, ratherthan understood as a political problem, America will not free itself again. TheArticles of Confederation Emerge In September 1774, representatives from twelveof the 13 colonies met in Philadelphia. The purpose of the gathering was todiscuss how to respond to a series of laws called the Coercive Acts throughwhich Britain was punishing its wayward colonies. (Georgia was absent becauseit required British assistance against rebellious Indians.)

This was the First Continental Congress. Its two mainaccomplishments were an agreement to boycott British goods and an agreement tocall a subsequent assembly. The Second Continental Congress met in May 1775with all colonies represented. The first military conflicts of the AmericanRevolution had occurred the month before: the Battles of Lexington and Concord.Congress quickly assumed the role of a provisional government in order tocoordinate the war effort. The Second Congress appointed a committee to draftthe Declaration of Independence. The next day, it appointed another committeeto draft a constitution to unite the emerging states. On July 2, 1776, theDeclaration of Independence was unanimously approved by the Congress andadopted on the 4th. It was a passionate assertion of the right of revolutionthat reflected the republicanism of its main author, a young Thomas Jefferson.

As the underlying ideology of the American Revolution,republicanism focused on individual liberty and the inalienable rights ofpeople against authority. Those who signed the Declaration did so at the riskof their lives because that act of treason against the Crown was punishable bydeath. Tension between the Declaration and the operation of Congress aroseimmediately; it was the tension between freedom and authority. In conductingthe war effort, Congress wielded considerable power. For example, to pay theContinental Army, it issued approximately $226 million dollars in paper money.Later (1780) the money was devalued at the rate of $40 to $1 specie, givingrise to the saying "not worth a Continental." Nevertheless, Congresshad no power to tax and could only request funds from the states.

After the war, the authority-shy states moved to constrainthe power of a peacetime Congress. The Articles created a loose confederationof 13 sovereign states, all of which ratified the document by early 1781. TheArticles declared, "Each state retains its sovereignty, freedom andindependence, and every Power, Jurisdiction and right, which is not by thisconfederation expressly delegated to the United States, in Congressassembled." The United States was referred to as "a firm league offriendship." A weak federal Congress was established primarily to presideover foreign policy such as treaty negotiation and to provide a common defenseagainst an invader.

Although the individual states were encouraged to havemilitias, no state had a standing military and none could declare war. Even inmilitary matters, however, Congress had limited power and could not pursueforeign wars or empire. Congress could neither tax nor regulate interstatetrade. It could not fundamentally extend its authority without explicitagreement from each state. There was no federal system of courts. And, althoughCongress elected a President, he presided only over the gathering itself. Manyof the brief Articles were devoted to spelling out a cooperative understandingbetween the sovereign states. For example, they specified "the people ofeach state shall have free ingress and regress to and from any other state, andshall enjoy therein all the privileges of trade and commerce..."

The Constitution that Should have Never Been Not since everyoneeyed the weak Congress with approval. In his book For a New Liberty, MurrayRothbard explained that there were "from the very beginning, powerfulelite forces, especially among the large merchants and planters, who wished toretain the restrictive British 'mercantilist' system of high taxes, controls,and monopoly privileges conferred by the government. These groups wished for astrong central and even imperial government; in short, they wanted theBritish system without Great Britain." The two most powerful voicesfor centralized power (or federalism) were James Madison and Alexander Hamiltonwho (along with John Jay) argued their case through the collection of anonymousessays entitled The Federalist; or, The New Constitution.

In 1787, the Constitutional Convention met in Philadelphiawith the clearly announced purpose of amending the Articles. It had beenexplicitly agreed that each change to the Articles needed to be ratified by allstates before it could be adopted. But the convention was commandeered byfederalists who discarded the Articles altogether and worked to forge a newmodel of government. The work was done behind locked doors, in secret, andwithout a transcript. In his book TowardAn American Revolution, historian Gerald John Fresia wrote, "[T]heFramers...abandoned their authorization to amend the Articles only, designed anentirely new centralized national government, and inserted in the Constitutionthat it should go into effect when ratified by only nine states."

According to historian J.W. Burgess, what the framers"actually did, stripped of all fiction and verbiage, was to assumeconstituent powers, ordain a constitution of government and liberty and demanda plebiscite thereon over the heads of all existing legally organized powers.Had Julius or Napoleon committed these acts, they would have been pronouncedcoup d'état." The resulting document gave Congress the authority to levytaxes on individuals, to institute a military draft, and to regulate interstatetrade. It created a federal court system to arbitrate disputes betweenindividuals and states, making the federal system into the final authority. ThePresidency became a powerful executive office. Where the Articles hadaffirmed the sovereignty of the states, the Constitution declared itself to bethe supreme law of the land.

The Constitution was an imperial document. It was also aprofound political compromise. All 13 states had approved the Articles. But theConstitution was so unpopular within the convention itself that manyconcessions were needed in order for it to pass. One compromise was thethree-fifths rule through which slaves counted as three-fifths of a human beingfor purposes of counting their owners' vote in elections. The enshrinement ofslavery within the Constitution would later prompt anti-slavery zealots to callthe document "a covenant with death, and an agreement with hell." Theslavery provisions would eventually lead to America's bloodiest conflict: theCivil War.

The Constitution was even less popular outside theconvention's locked doors. Many of the most powerful voices for republicanismrefused to even participate in the convention. It became clear to thefederalists that, without a Bill of Rights to guarantee individual libertiesagainst federal intrusion, the Constitution would probably not be ratified intolaw. Individual rights were reluctantly appended. The Constitution became lawin 1789. Before so much as a decade had passed, however, Congress adopted theAlien and Sedition Acts (1798), which suspended First Amendment rights; itbecame a crime to express "false, scandalous, and malicious writing"against the government or government officials or to stir up either sedition oropposition to the president and Congress. The text of the Constitution properoverpowered the appended protection of rights.

Where Can America Find Itself? The best of America lieswithin the Declaration of Independence which expresses the republicanism of itsprimary author, Jefferson. The Declaration is a statement of rebellion andrights, of passion and populism. It was written by a free people to asserttheir independence from authority. The Constitution was written by federalistsand vested interests to establish an aegis of authority under which to administerpower. Where the Declaration calls for revolution, the Constitution solidifiesgovernment. Where the Declaration asserts individual rights, the Constitutionacknowledges them only through a politically-expedient attachment. TheDeclaration was crafted with passion; the Constitution was written bybureaucrats. The two documents express different ideologies, passions andintentions. The tension between them is highlighted by the fact that only sixof the men who signed the Declaration also signed the Constitution: GeorgeRead, George Clymer, Ben Franklin, Robert Morris, James Wilson and RogerSherman. Many others refused to sign because they had previously pledgedthemselves to the Articles.

People admire the Bill of Rights, and rightly so. But theBill of Rights is far from the main thrust or impact of the Constitution. It isa document that centralizes power. What America needs is not fealty to theConstitution but a second Declaration of Independence – this time against itsown government. -

By Wendy McElroy

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Liberty and Divided Government

Liberty and Divided Government