Centralized vs Dispersed Power

Where America Took an Historical Wrong Turn

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

This was the First Continental Congress. Its two main accomplishments were an agreement to boycott British goods and an agreement to call a subsequent assembly. The Second Continental Congress met in May 1775 with all colonies represented. The first military conflicts of the American Revolution had occurred the month before: the Battles of Lexington and Concord. Congress quickly assumed the role of a provisional government in order to coordinate the war effort. The Second Congress appointed a committee to draft the Declaration of Independence. The next day, it appointed another committee to draft a constitution to unite the emerging states. On July 2, 1776, the Declaration of Independence was unanimously approved by the Congress and adopted on the 4th. It was a passionate assertion of the right of revolution that 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 of people against authority. Those who signed the Declaration did so at the risk of their lives because that act of treason against the Crown was punishable by death. Tension between the Declaration and the operation of Congress arose immediately; it was the tension between freedom and authority. In conducting the war effort, Congress wielded considerable power. For example, to pay the Continental Army, it issued approximately $226 million dollars in paper money. Later (1780) the money was devalued at the rate of $40 to $1 specie, giving rise to the saying "not worth a Continental." Nevertheless, Congress had no power to tax and could only request funds from the states.

After the war, the authority-shy states moved to constrain the power of a peacetime Congress. The Articles created a loose confederation of 13 sovereign states, all of which ratified the document by early 1781. The Articles declared, "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." The United States was referred to as "a firm league of friendship." A weak federal Congress was established primarily to preside over foreign policy such as treaty negotiation and to provide a common defense against an invader.

Although the individual states were encouraged to have militias, no state had a standing military and none could declare war. Even in military matters, however, Congress had limited power and could not pursue foreign wars or empire. Congress could neither tax nor regulate interstate trade. It could not fundamentally extend its authority without explicit agreement from each state. There was no federal system of courts. And, although Congress elected a President, he presided only over the gathering itself. Many of the brief Articles were devoted to spelling out a cooperative understanding between the sovereign states. For example, they specified "the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce..."

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

In 1787, the Constitutional Convention met in Philadelphia with the clearly announced purpose of amending the Articles. It had been explicitly agreed that each change to the Articles needed to be ratified by all states before it could be adopted. But the convention was commandeered by federalists who discarded the Articles altogether and worked to forge a new model of government. The work was done behind locked doors, in secret, and without a transcript. In his book Toward An American Revolution, historian Gerald John Fresia wrote, "[T]he Framers...abandoned their authorization to amend the Articles only, designed an entirely new centralized national government, and inserted in the Constitution that 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 assume constituent powers, ordain a constitution of government and liberty and demand a plebiscite thereon over the heads of all existing legally organized powers. Had Julius or Napoleon committed these acts, they would have been pronounced coup d'état." The resulting document gave Congress the authority to levy taxes on individuals, to institute a military draft, and to regulate interstate trade. It created a federal court system to arbitrate disputes between individuals and states, making the federal system into the final authority. The Presidency became a powerful executive office. Where the Articles had affirmed the sovereignty of the states, the Constitution declared itself to be the supreme law of the land.

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

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

Where Can America Find Itself? The best of America lies within the Declaration of Independence which expresses the republicanism of its primary author, Jefferson. The Declaration is a statement of rebellion and rights, of passion and populism. It was written by a free people to assert their independence from authority. The Constitution was written by federalists and vested interests to establish an aegis of authority under which to administer power. Where the Declaration calls for revolution, the Constitution solidifies government. Where the Declaration asserts individual rights, the Constitution acknowledges them only through a politically-expedient attachment. The Declaration was crafted with passion; the Constitution was written by bureaucrats. The two documents express different ideologies, passions and intentions. The tension between them is highlighted by the fact that only six of the men who signed the Declaration also signed the Constitution: George Read, George Clymer, Ben Franklin, Robert Morris, James Wilson and Roger Sherman. Many others refused to sign because they had previously pledged themselves to the Articles.

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

By Wendy McElroy

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Liberty and Divided Government

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