Slick Construction under the Articles of Confederation
Stromberg, Joseph R., Freeman
Writing lately on the Fourth Amendment, Professor Thomas Y. Davies decries the "originalism" practiced by certain Supreme Court justices and sundry legal commentators. On historical-hermeneutic grounds, he faults face-value originalism for missing "the shared, implicit assumptions that informed the public meaning" on which a given constitutional provision rested. Underlying the Fourth Amendment were common-law rules about arrest, which later Americans managed to forget entirely. This amnesia set in somewhere in the early nineteenth century. Accordingly, recovering the amendment's meaning becomes difficult, if not quite impossible. Long ago, Americans simply understood the underlying rules, which were more detailed-and more favorable to our liberties-than today's Justice Department "rules of engagement," or shooting licenses, which seem to owe more to military "law" than to common law.
If originalism entails the problem Davies raises, it also has at least one more. Original intent, meaning, or understanding is inevitably multiple. John L. O'Sullivan, former editor of the Democratic Review, noticed this in 1862. The Constitution, he wrote, was America's "ark of the covenant," but "no man could ever exactly say what the Constitution was." Its "elastic generalities of phrase" hid the deep divide "between the 'Consolidation' and the 'State Rights' parties in the Convention. . . ." Constitutional interpretation had been " twofold from the outset . . . Hamiltonian and Jeffersonian, or indeed Northern and Southern." There was "not one . . . universally recognised Constitution, but two, widely different, and indeed conflicting" (my italics).
But what of our first constitution, the Articles of Confederation? For a time, they suited most of the people and the states. On the other hand, a vocal group in Congress was violently unhappy over the Articles' failure to establish effective federal (national) power. Joseph Jones of Virginia, newly arrived in mid-1780, complained, "This Body never had or at least in few instances have exercised powers adequate tothe purposes of war. . . ." Charles Thomson lamented in 1784, "A government without a visible head must appear a strange phenomenon to European politicians. . . ."
With new members, a dangerous optical malady often set in-"Continental Vision." Writing to James Madison on February 20, 1784, Thomas Jefferson described the process: "[Young statesmen learn to] see the affairs of the Confederacy from a high ground; they learn the importance of the Union & befriend federal measures when they return." Continental vision and "insufficient" power: Here was a dilemma, one that American nationalists-James Wilson, Madison, Alexander Hamilton, Robert Morris, and many others-determined to resolve. In their view, the country needed a mercantilist political economy, a standing army, public debt, and effective central taxation-things structurally and systematically interrelated. Nationalists wanted central power, as much of it as possible. Under the Confederation they made some interesting attempts to get it. We may begin with war powers.
Invoking vague war powers, early American nationalists urged that Congress ought to have certain powers and, therefore, did or "must" have them, neatly getting an "is" from an "ought." Big on assertion, Congress spent the war complaining of its lack of real power, including power to tax. Yet mysteriously, Americans defeated Britain without anyone's giving Congress many powers it craved or claimed. What actually happened?
Acting Without Authority
In practice, Congress coordinated revolutionary activity in the 13 incipient states and conducted diplomatic activity in their (plural) name. In so doing, Congress constantly recommended specific actions to the states, relying on them to carry the measures out. Before ratification of the Articles (1781), Congress often undertook measures for which it could show no obvious authority whatsoever, including the debt it created, its adoption of a European-style code of military "justice" for the Continental Army, and its creation of that army itself. …