Article II of the Articles of Confederation codified that one of the purposes of the American Revolution was the protection of state sovereignty, by making state sovereignty a fundamental aspect of the American constitutional order…
Today’s offering in our Timeless Essay series affords our readers the opportunity to join Nathan Coleman.
The crisis with Britain had forced Americans to articulate a constitutional vision where the colonies were sovereign political units for all their internal affairs, with the crown exercising sovereign power over external issues. By declaring independence, the crown’s sovereign authority had reverted to the colonies, who, as “Free and Independent States,” had the “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Although secession from the British Empire meant the states were thirteen distinct sovereigns, most Americans realized their independence would be short lived if they did not cooperate. That realization required Americans to solve the constitutional dilemma of how to create a union that would balance their need for corporation while preserving the state sovereignty they claimed had always existed.
The debate was not as easily resolved as it first seemed. Although Article II of the Articles of Confederation enshrined state sovereignty, a distinct group of Americans argued for a national government that both represented the people of America and possessed robust sovereign power, including the use of implied powers. Throughout the entire Revolution and in the immediate aftermath of peace, this group fought against the idea of state sovereignty, claiming that it hindered the American war effort and threatened lasting peace. Despite their efforts, by the end of the war Americans had embraced state sovereignty as the constitutional foundation of the Revolution. In the process of those debates, moreover, Americans had explained how that state sovereignty was to operate in their constitutional system.
The need for a union more permanent and structured than that of the Continental Congress was so important to Americans that before declaring independence, they authorized a committee to draft articles of confederation. On July 12, 1776, while the War of Independence thundered on the battlefields of New York and New Jersey, the committee submitted their product. Known as the “Dickinson Plan,” after the chair of the committee and its chief author, John Dickinson, the plan created a confederation in which a “firm League of Friendship” existed between the sister states. Under the plan, states would voluntarily surrender elements of their sovereignty, especially powers associated with the former monarchial authority to wage war, conduct diplomacy, and settle disputes between sister states.[i] These particular delegations of powers were uneventful and uncontroversial. It was the primary reason they believed a union of the states was necessary.
The committee’s draft maintained the internal and external dichotomy that Dickinson and others first explained in the 1760s, but two provisions provoked intense debate: the one state, one vote for congressional representation and Article III, which stated that “Each Colony shall retain and enjoy as much of its present Laws, Rights and Customs, as it may think fit, and reserve to itself the sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation.” Each provision effected the function of state sovereignty.
Inside the chamber where the Continental Congress met, debates over the “momentous question” of allowing each state an equal vote in the Congress added to the already uncomfortable summer heat.[ii] These debates exposed the first division over state sovereignty and the nature of the American union. A small, but vocal, group of congressional delegates caused the breach. Known latter as the Nationalists, this group emerged first in 1776 during the debates over the draft of the Articles rather than in 1780 as most scholars assert.[iii] These early Nationalists, led by Pennsylvania delegates, James Wilson and Benjamin Rush, argued that the Confederation Congress was a national government representing the individual people of the states and not the states themselves.[iv] “The members of the congress it is true are appointed by States, but represent the people [and] no State hath a right to alienate the privilege of equal representation: it belongs solely [to] the people,” Rush noted in a speech on the floor of Congress. Wilson contended that “as to those matters which are referred to Congress, we are not so many states, we are one large state. We lay aside our individuality, whenever we come here.”[v] John Adams joined with Rush and Wilson to note that “the confederacy [was] to make use one individual only; it is to form us, like separate parcels of metal, into one common mass. We shall no longer retain our separate individuality, but become a single individual as to all questions submitted to the Confederacy.”[vi] In other words, because the external issues of war and peace transcended local, internal concerns, on this issue the Confederation was a unified state. A population-based representation for the Confederation, or “one people—a new nation” as Rush and Wilson proclaimed, suggested a teleocratic national government that surpassed those issues and drew the states together and could circumvent them and operate directly upon individuals.[vii] In essence, they hinted strongly for a supremacy in those same areas that Americans had denied giving Parliament throughout the previous decade.
The argument against the one state – one vote was the minority view. As soon as Wilson and Rush stated their positions, Congressional delegates countered by referring to what had been the accepted understanding of the Congress, that it represented the several states. Connecticut’s Roger Sherman noted “we are representatives of the States not individuals” while John Witherspoon equated “every colony [as] a distinct person.” Equal representation was necessary to preserve the equal stations of each state with the other. These arguments, rooted in how Americans understood the Continental Congress as representing the individual states, defeated the Nationalists’ attempt at creating a national sovereignty.[viii]
Although the Nationalists lost their debate to remove the one state, one vote provision, Article III of the proposal appeared to make the Confederation a national government. In particular, the final clause of that article provided the interpretative framework from which Nationalists’ could construct their argument. After noting in the first section of Article III that the colonies would “retain and enjoy” as much of their present laws as they deemed necessary, and reserving for themselves the “sole and exclusive Regulation and Government of its internal police” (note the use of “internal”), the last section qualified this internal authority, noting that it “shall not interfere with the Articles of this Confederation.” In all likelihood, the committee may have been trying to establish that the states retained all powers not given to the Confederation, but Article III’s language implied that while states could wield their traditional authority, when it conflicted in any way with the Articles, the state would cease exercising that power. Rather than reserving to the states those powers not granted to the Confederation, the article could potentially weaken state sovereignty. Adding to the problem, the draft did not clarify or define what constituted an “interference with the Articles.” Nor did it create or specify any mechanism to settling the inevitable disputes between Congress and States over the clause. The article’s silence on this mechanism, when combined with its language, indicates—even if unintentionally—that when conflicts between the state and Confederation government occurred the state had to yield to the Confederation.
Little documentary evidence exists for the deliberations of the Dickinson committee. What little is known suggests a difficult task fraught with arguments. It remains unclear if Dickinson and his committee actually intended for this final section to be pregnant with nationalist aspirations. Given Dickinson’s forceful defense of colonial sovereignty over internal affairs, it seems unlikely that he or the committee intended this provision to corrode state authority, even if they sought a powerful Confederation.[ix] Nevertheless, the small Nationalist faction saw its potential and thought they understood what the broad language implied, a national sovereign government. In 1787, James Wilson recalled the passage noting how, “[i]n the beginning of our troubles, congress themselves were as one State… The original draft of confederation was drawn on the first ideas.”[x] While Wilson’s remembrance of the Congress as being “one State” contradicted the reality that Congress met as a collection of sovereign states. Although his remarks were more of a polemical ploy to argue for a stronger federal constitution, his reminiscences of how he and other Nationalists viewed the Dickinson draft was accurate.
Other elements of the Dickinson draft allowed Nationalists to insist upon the Confederation as a national government. The draft of the Articles required the states to honor the liberty, privileges, and immunities of citizens from other states. It also forbade states from engaging in warfare, keeping the military forces larger than what they needed to maintain posts, granting letters of marque and reprisals, or entering into treaties with foreign powers. Under the proposed Articles, Congress was granted the “sole and exclusive Right and Power” of making war and peace; creating rules of capture and prizes; granting letters of marque and reprisals; creating courts for crimes committed on the high seas; sending and receiving ambassadors; entering into treaties and alliances; settling boundary disputes between colonies; coining and regulating the value of money; managing Indian relations; “disposing” any land acquired from England; establishing post offices; and borrowing on the credit of the “United Colonies.” The list of extensive powers mixed with the limitations placed upon the states led Nationalists to suggest that sovereignty rested in the Confederation Congress. Obviously, the states would continue to exist—any contrary thought seems not yet to have entered the minds of even the most ardent Nationalists—but, they would be rendered little more than administrative units disposing of the Congress’ orders as they best saw fit, but obeying nevertheless. If the states defied or worked in open conflict against Congress’ wishes, the proposed Article III would make short work of the resistance.
The exigencies of war postponed serious debate upon the draft Articles and stalled the Nationalists’ advancement in transforming the proposed “league of friendship” into a national government. The delay proved critical. When Congress finally began to reconsider the proposals in the winter of 1777, the circumstances of the debate were different. Any potential Nationalist victory collapsed as Thomas Burke, a newly arrived congressional delegate from North Carolina, took his seat. His contribution to the Revolution’s constitutional settlement was of singular importance.
Burke, a devout republican, feared centralized power and affirmed that the states were sovereign entities. Arriving to Congress as the determined champion of state sovereignty, he was ready to do battle against the Nationalists’ attempt to weaken the authority of the states at the hands of Congress. What he witnessed in the debates in Congress confirmed his worries. The first several weeks of his tenure, he reported, were consumed with debates “whose object on one side is to increase the Power of Congress, and on the other to restrain it.”[xi] Because of his republican and federal sensitivities, Burke did not hesitate to proclaim his ideas on state sovereignty. Soon after joining Congress he told his colleagues that they were “exceedingly mistaken if they deemed him a Man who would tamely suffer any invasion or encroachment on” state sovereignty, no matter the reason or cause. If Congress “proceeded to so arbitrary and Tyrannical” an exertion of “Power he would Consider it as no longer that which ought to be trusted with the Liberties of their Fellow Citizens.” At one point, he threatened that “if any such Question should be put” that risked the sovereignty of the states, North Carolina, “with determined resolution” would “withdraw from Congress.”[xii]
Burke worried that too many of his colleagues oscillated on the question of Congressional power. He complained to North Carolina Governor, Richard Caswell that
[t]he same persons who on one day endeavor to carry through some Resolutions, whose Tendancy [sic] is to increase the Power of Congress, are often on another day very strenuous advocates to restrain it. From this I infer that one has entertained a concerted design to increase the Power.[xiii]
Burke believed he could account for the equivocation on the question of congressional power. “The attempts to [increase Congressional power] proceed from Ignorance of what such a Being ought to be, and from the Delusive Intoxication which power naturally imposes on the human Mind.”[xiv] Although reflecting his republican beliefs, Burke also feared that if those inebriated with power rose to prominence in the Confederation Congress as proposed in the Dickinson draft, tyranny would follow. Burke’s concern, therefore, became protecting the liberties of the people against these potential concentrations of power. To curtail any “delusive intoxications” meant chaining Congress to only those particulars granted in the proposed Articles of Confederation. Burke believed two methods could help achieve his goals. The first included insuring that “patriotism in America must always be particular to the particular states,” because “Patriotism to the whole will never be cherished or regarded but as it may be conducive or necessary to the other.” Given men’s “zealous love for that grandeur & preeminence, & a capacity to promote it that will be what must best distinguish & recommend any individual in it.”[xv] The people of the states must demand the protection of their liberties.
Localism, however, could not guarantee the permanent limitation of Congressional authority. Having “the power of Congress…accurately defined” so that “adequate checks… prevented any excess” was necessary. Burke had cause to believe that such an adequate description of these powers was vital to the preservation of both state power and individual liberties. Soon after entering Congress, that body agreed to a report permitting it to authorize local officials, such as constables or justices of the peace, to arrest deserters without first seeking the permission of the states to use those officials. Wilson had defended the action on nationalist and teleocratic grounds that “every object of Continental Concern was the subject of Continental Councils, that all Provisions made by the Continental Councils must be carried into execution by Continental authority.” Burke rejected this argument outright. Having forced the records of the Congress to record his dissent to this measure, Burke launched into a fierce defense of the nomocratic relationship between limited power, federalism, and individual liberty. To quote Burke at length:
Congress, was herein assuming a Power to give authority from themselves to persons within the States to seize and Imprison the persons of the States, and thereby to endanger the personal Liberty of every man in the America…[he] denied that the provisions made by the Continental Councils were to be enforced by Continental authority. That it would be giving Congress a Power to prostrate all the Laws and Constitutions of the States because they might create a Power within each that must act entirely Independent of them, and might act directly Contrary to them. That they might by virtue of this Power render Ineffectual all the Bariers [sic] Provided in the State for the Security of the Rights of the Citizens for if they gave a Power to act Coercively it must be against the Subjects of some State, and the subject of every state was entitled to the Protection of that state, and subject to the Law of that alone, because to them alone did he give… That the states alone had Power to act Coercively against their Citizens, and therefore were the only Power Competent to carry into execution any Provisions whether Continental or Municipal. That he was well satisfied no Power on earth would ever obtain Authority to act Coercively against any of the Citizens of the State he represented expect under their own Legislature… That if Congress has the Power to appoint any Person to decide this Question the Congress has power unlimited over the Lives and Liberties of all men in America and the Provision so anxiously made by the respects States to Secure them, at Once Vanish before this Tremendous Authority… No power could be Competent to this but such as is created by the Legislature of each state, and if any Question related to the internal Polity of a state it certainly was this which involved all the Rights of the Citizens personal Freedom.[xvi]
In this long passage, Burke connected Congress’ actions as violations of the sovereign authority of the state and the liberty the citizens of the states. He strongly implied that citizens of the states owed no actual allegiance to the Confederation. During the imperial debates with England, Adams and others, including James Wilson, held that allegiance was a reciprocal relationship between subjects offering allegiance and receiving protection from the King. Americans owed allegiance to the crown because it protected them. With the declaring of independence, this reciprocal relationship reverted to the states and its citizens. Burke therefore condemned Congress’ authorization of local officials catching deserters because the citizens of the states were obedient only to the laws of their respective state since it was “to them [the state] alone did he give his Consent.” Hence, because the citizen agreed to the laws of their state, he was ‘entitled to the Protection of that particular state.”[xvii] No such agreement existed between the citizen and the Confederation.
This episode convinced Burke that structural mechanisms were necessary to limit potential violations of both state sovereignty and, in turn, protect individual liberty. The Articles needed a statement acknowledging the individual sovereignty of the states. Scouring the submitted “Dickinson Draft” of the Articles, however, he found such a mechanism wanting. When Congress resumed debates on the draft of the Articles, Burke seized the opportunity. The language of the proposed Article III was so vague and open to broad interpretation, he argued, that “it left it in the power of the future Congress or General Council to explain away every right belonging to the States, and to make their own power as unlimited as they please.” To fix this problem, Burke proposed an amendment to be situated directly after Article One of the Articles that would enshrine the sovereignty of the states. The amendment stated that each state retained “its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated.” After some debate—the details of which are unknown because they were not recorded—Congress approved the Amendment, eleven states in favor, Virginia opposed, and New Hampshire divided. Congress approved the Burke Amendment as Article II of the Articles of Confederation.[xvii]
The Burke Amendment was a stinging rebuke of the Nationalists’ argument. It suppressed their interpretation of the draft Articles and forced the Nationalists to work within the nomocratic framework of a state sovereignty-centered constitutional order. For that reason alone, it is more important than scholars have given it credit. The Burke Amendment also crystallized several critical constitutional arguments and developments. First, it constitutionalized the American argument, originally expounded in the resistance to British efforts to consolidate the empire, that the colonies—now states—were sovereign entities. Secondly, by guaranteeing state sovereignty in all areas save those “expressly delegated” to the Confederation Congress, it secured the internal and external dichotomy Dickinson and others laid out in the 1760s while upholding Adams’ argument of 1774 that the external authority of the Empire, now Confederation Congress, existed through consent of the states and not as a self-contained idea. The powers of the Confederation Congress existed only because each state consented to them. Thirdly, the Burke Amendment rejected the Nationalist idea that the “effects of unequal representation, would be to point out the principal cause of the downfall of liberty in most of the free States of the world,” and instead endorsed what had been the standard American equation of state sovereignty with the protection of individual liberty.[xix] If a state believed an action of the Confederation Congress violated the liberty of its citizen, the sovereignty of the state allowed it to ignore Congress and actively interpose and protect that citizen from the unauthorized action of the Congress. In other words, the Burke Amendment pointedly rejected the proposed Article III implication of making Congress supreme with the states having to obey Congress. The Amendment also spurned Rush’s notion that “the Objects before us are the people’s rights, not the rights of States. Every man in America stands related to two legislative bodies-he deposits his property, liberty & life with his own State, but his trade [and] Arms, the means of enriching & defending himself & his honor, he deposits with the congress. If entitled to equal representation in the first case, why not in the second?”[xx] Each state would determine for itself if Congress exercised its power properly. Finally, Article II of the Articles of Confederation ensured a nomocratic constitutional order by codifying that one of the purposes of the American Revolution was the protection of state sovereignty, making state sovereignty a fundamental aspect of the American constitutional order.
This essay in our series of “Timeless Essays” was first published here in October 2017.
This essay is the first part of Chapter 2, “Establishing and Debating the Nature of State Sovereignty: Articles of Confederation and the Politics of Early 1780s,” of The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800 (Lanham, MD: Lexington Books, 2016) and is republished with gracious permission from the author. You may read the second part here.
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[i] Jerrilyn Greene Marsten, The King and Congress: The Transfer of Political Legitimacy, 1774-1776 (Princeton: Princeton University Press, 1987) explores in rich detail the transfer of these monarchial powers to the Congress.
[ii] Paul H. Smith, ed. Letters of Delegates to Congress, 1774-1789 24 vols. (Washington, D.C.: Library of Congress, 1976-2000), 4: 593.
[iii] David Hendrickson, Peace Pact: The Lost World of the Founding (Lawrence: University Press of Kansas, 2003), 145, asserts that no clear alignments of “Nationalists” and “federalist” emerged in 1776. It is true that no rival factions emerged in 1776 over different interpretations or political power; nevertheless, we do see the beginnings of the Nationalist thinking with the debate over Congressional representation. Also see Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781 (Madison: University of Wisconsin Press, 1940; 1970),107-160.
[iv] E. James Ferguson, “The Nationalists of 1781-1783 and the Economic Interpretation of the Constitution.” Journal of American History 56 (Sept. 1969): 241-261; Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca: Cornell University Press, 1995), 13-42; and Forrest McDonald, E Pluribus Unum: The Formation of the American Republic, 1776-1790 (Boston: Houghton Mifflin, 1965), 22-29.
[v] Wilson’s remarks can be found in Charles Francis Adams, ed. The Works of John Adams 10 vols (Boston: Little, Brown, and Company 1850), 2: 490-491; Benjamin Rush, “Notes for a Speech in Congress,” August 1, 1776 in Smith, Letter of Delegates, 4: 599-600.
[vi] Adams’ remarks can be in Thomas Jefferson, “Notes of Proceedings in the Continental Congress, 7 June–1 August 1776,” in Julian P. Boyd, ed., The Papers of Thomas Jefferson 38 vols. (Princeton: University of Princeton Press, 1950-2011), 1: 299-329.
[vii] Rush, in Smith, Letters of Delegates, 599-600.
[viii] Sherman, Ibid., 592.
[ix] See Dickinson’s July 2 speech against the Declaration of Independence and Josiah Bartlett to John Langdon, June 17, 1776 both in Ibid., 357-358 and 255-257. Merrill Jensen agrees that the Dickinson committee’s work must have been a contentious affair. Jensen, Articles of Confederation, 126-129 argues unequivocally that the draft made Congress “theoretically, in not practically the supreme authority.” While Congressional supremacy might have been the practical outcome had Dickinson’s draft been accepted as written, it remains unclear if that was the theoretical point the committee was trying to reach.
[x] James Wilson, June 8, 1787 as recorded by Robert Yates in Max Farrand, ed., The Records of the Federal Convention 4 vols (New Haven: Yale University Press, 1911), 1: 170.
[xi] Thomas Burke to Richard Caswell, February 25, 1777 in Smith, ed. Letters of Delegates, 6: 357; Jensen, Articles of Confederation, 161-176.
[xii] Burke, “Notes on Debates,” February 26, 1777 in Ibid., 369.
[xiii] Burke to Caswell, March 11, 1777 in Ibid., 427.
[xiv]> Ibid., 429-430.
[xv] Burke to Caswell, March 11, 1777 in Ibid., 427.
[xvi] Burke, Notes on Debates, February 25, 1777 in Ibid., 357-358.
[xviii] Burke to Caswell, April 29, 1777 in Ibid. 673-674.
[xix] Benjamin Rush, “Notes on Speech,” August 1, 1776 in Ibid., 599-600.
Editor’s note: The featured image is “The Foundation of American Government” (1925) by Henry Hintermeister.