17
THE CRITICAL PERIOD—FOR WHOM?
THE CRITICAL PERIOD—FOR WHOM?
ARTICLES OF CONFEDERATION—
OUR FIRST WRITTEN CONSTITUTION
OUR FIRST WRITTEN CONSTITUTION
Following the Declaration of Independence, Congress drafted in 1777 the Articles of Confederation and adopted them in 1781. Under the Articles the Congress proceeded to appoint presidents with limited powers, and to send and receive ministers.
In other words, before we had our present written Constitution, we had a written constitution, the Articles of Confederation. Thus we have always had the outward forms of constitutional government; the people were always in a position to get control of the government if they had known what to do, and had taken the trouble to do it.
When the Revolution started, the colonists began to organize actual government under English constitutional principles, minus the trappings of nobility and royalty. It was nothing more than a group of youngsters going into business for themselves. They had won a substantial stake in the land; they had a going business.
In 1775, one year before the Declaration of Independence, and six years before the Articles were adopted, the colonists created a Post Office Department. Benjamin Franklin had just been purged as Royal Deputy Postmaster General, and was offered the new American job of Postmaster General, but he did not accept. So another was appointed, and the department went into operation.
Other administrations were definitely created, which by the adoption of the Articles in 1781 became legally and constitutionally accepted executive departments as of today. They were the Department of War, Department of Foreign Affairs, and Department of Finance (known first as "Treasury Administration," in which Robert Morris accepted the position of Superintendant of Finance.) The Post Office was merely improved.
More, these departments went over into the second written constitution, adopted in 1789, although there were statutory re-enactments for them. General Henry Knox, Secretary of War, took over the same department under the new constitution; John Jay, Secretary of Foreign Affairs, did the same.
Indeed, during the period of Revolution and the first written constitution, our country not only had a semblance of government, but actual continuous consititutional government.
This is important, because many people—including historians, teachers of law and justices of the Supreme Court (in decisions dealing with constitutional law)—practically ignore that period. They simply skip the fact that there ever was any constitution or government, written or unwritten, other than the one blacked on parchment at Philadelphia in 1787, by the "Founding Fathers."
Besides waging of war and organizing government, the Congress of the United States, under the first written constitution or Articles, achieved many things. It handled numerous foreign problems well. Above all, it established the right of the people to use the land.
The organization of the Northwest Territory, with its settlement of people, expeditions and Indian wars, was an exceptional achievement. The organization was based on the writing of the Northwest Ordinance. Its provisions, followed by statutes, for the distribution of land were practical. Its expression of human rights, its summation of the theory of Anglo-Saxon constitutionalism, its devotion to free religion and education, were spiritually sublime. It was in some respects a better expression of human rights than the words contained in the Constitution and the Bill of Rights.
The Northwest Ordinance is surely a part of our constitution, unwritten or written, living or paper. The Supreme Court afterwards frequently reviewed the Ordinance and definitely recognized it as a part of our constitutional system. In the Dred Scott decision, the Supreme Court differentiated between the Northwest Territory and the Louisiana Purchase, it specifically recognized constitutional validities adopted under the Articles of Confederation with respect to the Northwest Territory, while it did not recognize validities of Congressional legislation enacted with respect to the Louisiana Purchase under our present Constitution.
Not only is the importance of the Articles of Confederation frequently ignored. There are also misconceptions of the economic and financial conditions out of which they sprang. One of these is that it was a desperately "critical period."
It is true that moneylenders were having a critical time and that the country was flooded with paper money. Washington bitterly complained that a traveler had to carry scales to weigh his money, or run the risk of being gypped (the word is mine, not George's).
States really regarded themselves as independent nations, and so acted. They set up tariff barriers against each other. Virginia and Maryland had a row over the Potomac, like those of feudal principalities on European rivers after the fall of the Roman Empire. Soon these two states, plus Pennyslvania, were squabbling over tariff barriers and trade restrictions. The row spread over the colonies.
George Washington was worried and disgusted. He said that if there were no change in the system, it meant the "downfall of the nation." Alexander Hamilton, too, pointed out numerous faults in the Articles of Confederation—their failure to grant sufficient power, and their failure to provide for military protection and taxation.
And since he looms so big in American history, let us digress for a minute or two and talk of this remarkable man and character. Today he is accepted as authoritative on national finance, our constitutional history, and on the life and times he represented. He was only seventeen with but two years' residence in American (he came from the West Indies), when he began writing and fighting for the Revolution (1774). At twenty he was a colonel on Washington's staff. He was a brilliant soldier and commander in the field by the time he was twenty-one. At twenty-three he married into the powerful and rich Schuyler family.
He wrote more than half of the Federalist, a series of articles concerning the adoption of the Constitution. They were comprehensive and well done. He became the first Secretary of the Treasury under the new Constitution; he became one of the great lawyers of the time. It is because of his exceptionally brilliant mind, his comprehensive, self-acquiring learning, and his widely varied experiences, that he is frequently cited as authoritative by scholars, historians, and the justices of the Supreme Court.
He was, however, an opponent of democracy, and would have preferred monarchial and aristocratic rule. He believed in government by the "rich and well-born"; in a strong, military, coercive, centralized government, without states, and with many officials holding office for life.
For a century and a half conservatives have regarded him as their High Priest. Yet now that the people find it expedient to vest more authority in their federal government—a development in accord with Hamilton's theories—the conservatives are outraged. Outraged because their influence over the federal government has been somewhat diminished. So the conservatives have now abandoned Hamilton and centralization for Jefferson and "state's rights."
At the time the Articles were adopted, however, Alexander Hamilton and his class were talking much of the terrible times and the so-called "critical period." It was critical all right.
But the question is, for whom?
For the farmers? The small businessmen? The average workers?
The answer is that it was not so critical for them; in fact, many of them were fairly prosperous. But it was critical for the "rich and well-born"—Hamilton's class; it was critical for the moneylenders, the big businessmen, the great plantation owners, the shippers, factory owners, and interstate industrialists.
I am not trying to prove that a new and more centralized government was not necessary, because it was. I believe it obvious that the independent military establishments and economic units calling themselves states sooner or later would either have fallen into the hands of Europe, or have destroyed one another. It is quite true that a general government with more power was necessary to preserve the union and national life.
No one need lose any sleep over the sad plight of the "common" people, however, under the First Constitution or Articles. They were, comparatively speaking, since the country was agrarian, with employment or lands for all, better off than millions in our country today. It was the moneylending and conservative classes who really wanted the new constitution. Since it was not an industrial age, the people could wangle along on the land itself, but the conservative classes wanted courts for the collection of their debts, a strong military government for public order, and an integrated economic system in which they could carry on business and make profits.
Let us look into the calling of the convention for the new constitution.
In other words, before we had our present written Constitution, we had a written constitution, the Articles of Confederation. Thus we have always had the outward forms of constitutional government; the people were always in a position to get control of the government if they had known what to do, and had taken the trouble to do it.
When the Revolution started, the colonists began to organize actual government under English constitutional principles, minus the trappings of nobility and royalty. It was nothing more than a group of youngsters going into business for themselves. They had won a substantial stake in the land; they had a going business.
In 1775, one year before the Declaration of Independence, and six years before the Articles were adopted, the colonists created a Post Office Department. Benjamin Franklin had just been purged as Royal Deputy Postmaster General, and was offered the new American job of Postmaster General, but he did not accept. So another was appointed, and the department went into operation.
Other administrations were definitely created, which by the adoption of the Articles in 1781 became legally and constitutionally accepted executive departments as of today. They were the Department of War, Department of Foreign Affairs, and Department of Finance (known first as "Treasury Administration," in which Robert Morris accepted the position of Superintendant of Finance.) The Post Office was merely improved.
More, these departments went over into the second written constitution, adopted in 1789, although there were statutory re-enactments for them. General Henry Knox, Secretary of War, took over the same department under the new constitution; John Jay, Secretary of Foreign Affairs, did the same.
Indeed, during the period of Revolution and the first written constitution, our country not only had a semblance of government, but actual continuous consititutional government.
This is important, because many people—including historians, teachers of law and justices of the Supreme Court (in decisions dealing with constitutional law)—practically ignore that period. They simply skip the fact that there ever was any constitution or government, written or unwritten, other than the one blacked on parchment at Philadelphia in 1787, by the "Founding Fathers."
Besides waging of war and organizing government, the Congress of the United States, under the first written constitution or Articles, achieved many things. It handled numerous foreign problems well. Above all, it established the right of the people to use the land.
The organization of the Northwest Territory, with its settlement of people, expeditions and Indian wars, was an exceptional achievement. The organization was based on the writing of the Northwest Ordinance. Its provisions, followed by statutes, for the distribution of land were practical. Its expression of human rights, its summation of the theory of Anglo-Saxon constitutionalism, its devotion to free religion and education, were spiritually sublime. It was in some respects a better expression of human rights than the words contained in the Constitution and the Bill of Rights.
The Northwest Ordinance is surely a part of our constitution, unwritten or written, living or paper. The Supreme Court afterwards frequently reviewed the Ordinance and definitely recognized it as a part of our constitutional system. In the Dred Scott decision, the Supreme Court differentiated between the Northwest Territory and the Louisiana Purchase, it specifically recognized constitutional validities adopted under the Articles of Confederation with respect to the Northwest Territory, while it did not recognize validities of Congressional legislation enacted with respect to the Louisiana Purchase under our present Constitution.
Not only is the importance of the Articles of Confederation frequently ignored. There are also misconceptions of the economic and financial conditions out of which they sprang. One of these is that it was a desperately "critical period."
It is true that moneylenders were having a critical time and that the country was flooded with paper money. Washington bitterly complained that a traveler had to carry scales to weigh his money, or run the risk of being gypped (the word is mine, not George's).
States really regarded themselves as independent nations, and so acted. They set up tariff barriers against each other. Virginia and Maryland had a row over the Potomac, like those of feudal principalities on European rivers after the fall of the Roman Empire. Soon these two states, plus Pennyslvania, were squabbling over tariff barriers and trade restrictions. The row spread over the colonies.
George Washington was worried and disgusted. He said that if there were no change in the system, it meant the "downfall of the nation." Alexander Hamilton, too, pointed out numerous faults in the Articles of Confederation—their failure to grant sufficient power, and their failure to provide for military protection and taxation.
And since he looms so big in American history, let us digress for a minute or two and talk of this remarkable man and character. Today he is accepted as authoritative on national finance, our constitutional history, and on the life and times he represented. He was only seventeen with but two years' residence in American (he came from the West Indies), when he began writing and fighting for the Revolution (1774). At twenty he was a colonel on Washington's staff. He was a brilliant soldier and commander in the field by the time he was twenty-one. At twenty-three he married into the powerful and rich Schuyler family.
He wrote more than half of the Federalist, a series of articles concerning the adoption of the Constitution. They were comprehensive and well done. He became the first Secretary of the Treasury under the new Constitution; he became one of the great lawyers of the time. It is because of his exceptionally brilliant mind, his comprehensive, self-acquiring learning, and his widely varied experiences, that he is frequently cited as authoritative by scholars, historians, and the justices of the Supreme Court.
He was, however, an opponent of democracy, and would have preferred monarchial and aristocratic rule. He believed in government by the "rich and well-born"; in a strong, military, coercive, centralized government, without states, and with many officials holding office for life.
For a century and a half conservatives have regarded him as their High Priest. Yet now that the people find it expedient to vest more authority in their federal government—a development in accord with Hamilton's theories—the conservatives are outraged. Outraged because their influence over the federal government has been somewhat diminished. So the conservatives have now abandoned Hamilton and centralization for Jefferson and "state's rights."
At the time the Articles were adopted, however, Alexander Hamilton and his class were talking much of the terrible times and the so-called "critical period." It was critical all right.
But the question is, for whom?
For the farmers? The small businessmen? The average workers?
The answer is that it was not so critical for them; in fact, many of them were fairly prosperous. But it was critical for the "rich and well-born"—Hamilton's class; it was critical for the moneylenders, the big businessmen, the great plantation owners, the shippers, factory owners, and interstate industrialists.
I am not trying to prove that a new and more centralized government was not necessary, because it was. I believe it obvious that the independent military establishments and economic units calling themselves states sooner or later would either have fallen into the hands of Europe, or have destroyed one another. It is quite true that a general government with more power was necessary to preserve the union and national life.
No one need lose any sleep over the sad plight of the "common" people, however, under the First Constitution or Articles. They were, comparatively speaking, since the country was agrarian, with employment or lands for all, better off than millions in our country today. It was the moneylending and conservative classes who really wanted the new constitution. Since it was not an industrial age, the people could wangle along on the land itself, but the conservative classes wanted courts for the collection of their debts, a strong military government for public order, and an integrated economic system in which they could carry on business and make profits.
Let us look into the calling of the convention for the new constitution.
